CRIM312 agreement to bring about a settlement of their dispute

DISPUTE RESOLUTION through consensus or by using of the

AND CRISES/INCIDENT MANAGEMENT PRELIMS similar techniques which is persuasive.
• an alternative out-of-court dispute resolution
WEEK 2
instrument.
CONCEPTS, MODES,
Principles and Philosophies of: Arbitration
PRINCIPLES AND
•more formal and can look more like litigation.
PHILOSOPHIES IN DISPUTE
•Parties submit their dispute to an arbitrator
RESOLUTION
who renders a decision following the process.
Dispute Resolution •They can agree to arbitrate before or after a
•a process for resolving differences between conflict occurs.
two or more parties or groups.
Principles and Philosophies of:
•a number of processes that can be used
Arbitration
to resolve a conflict, dispute or claim.
•They have the freedom to set the rules of
•used interchangeably with conflict resolution,
arbitration, which can be much more flexible
although conflicts are generally more deep-
than formal civil procedure required in court.
rooted and lengthy than disputes.
•can help parties save time and expense
Dispute Resolution associated with litigation.
• alternatives to having a court decide the dispute in a
Principles and Philosophies of: Negotiation
trial or other institutions decide the
•usually the first approach to take before
resolution of the case or contract.
resorting to other ADR methods.
• can be used to resolve any type of dispute
•more informal and affords the parties flexibility.
including family, neighborhood, employment,
•parties identify an issue and meet to fix it
business, housing, personal injury, consumer, and
wherein they control the process and the
environmental disputes.
solution.
• a way of resolving a conflict or dispute, often without
•the first stage in a potential ADR process.
needing to go to court.
Principles and Philosophies of: Mediation
The process of dispute resolution is also
•a type of assisted negotiation.
known as alternative dispute resolution,
•parties obtain the help of a neutral third party
appropriate dispute resolution or ADR. The
(the mediator) to help them resolve the
process can be used to attempt the
dispute.
resolution of most business disputes
•can be informal, where the mediator is a
without parties needing to attend court.
friend, family member or trusted advisor.
Principles and Philosophies of: Conciliation
Principles and Philosophies of: Mediation
• the settling the disputes without litigations.
•can also be formal, where the parties hire a
• a process in which independent person or persons are
professional, neutral third party.
appointed by the parties with mutual consent by
•Formal mediators are trained in negotiations and help
agreement to bring about a settlement of their dispute
parties solve the issue to satisfy both sides.
through consensus or by using of the similar techniques
•In either case, the purpose of a mediator is not to
which is persuasive.
decide whether a party is wrong or right but to help the
• an alternative out-of-court dispute resolution
parties find a mutually acceptable resolution.
instrument.
Principles and Philosophies of:
Principles and Philosophies of: Conciliation
Court-Annexed Mediation (CAM)
• the settling the disputes without litigations.
•a voluntary process conducted under the
• a process in which independent person or persons are
auspices of the court by referring the parties to
appointed by the parties with mutual consent by
the Philippine Mediation Center (PMC) Unit
for the settlement of their dispute, assisted by
a Mediator accredited by the Supreme Court.
Principles and Philosophies of:
Court-Annexed Mediation (CAM)
•If annexed mediation fails, the mediator shall
immediately issue a certificate of failed mediation
returning it to the court for further proceedings. The
court then, shall upon receipt of the notice of failure,
set the case for resumption of pre-trial, and thereafter,
try and decide the case on its merits.
Other Modes of Dispute Resolution Judicial Mediation
•a form of Alternative Dispute Resolution.
•brings the disputants together for a mediation
at a personal preliminary hearing before a
trained sitting judge who stays neutral and
endeavors to administer the parties in
resolving their disputes.
Other Modes of Dispute Resolution
Judicial Mediation
•Judicial Dispute Resolution is a process whereby the
judge (called the JDR Judge) employs conciliation,
mediation or early neutral
evaluation in order to settle a case at the pre- trial
stage. In the event the JDR fails, then another judge
(called the trial judge) shall proceed to hear and decide
the case.
Other Modes of Dispute Resolution Litigation
•the process of resolving rights-based disputes
through the court system, from filing a law suit,
courtroom trial and appeal.
•the process of taking legal action to resolve
disputes before a court of law.
•can apply to any situation where parties seek
legal remedies from a court.
WEEK 3
THE PRINCIPLES OF THE
TWO PSYCHOLOGICAL
CONCEPTIONS OF
JUSTICE
Justice refers to the giving what is due to
anybody, preservation and respecting the
rights accorded to anybody.
Justice System are processes and procedures
to be observed in the verification and
investigation of any untoward act committed by
anybody that tarnishes the rights of somebody in
order to determine what is due to be awarded
to the affected person.
Objectives to responses in law breaking
•Behavioral control can be in a form of
deterrence and incapacitation through
incarceration or confinement which is a punitive
means.
•Justice Restoration can be done in a form
of meting out the punishment which is
retributive or it can also be in a form of
constructive through restorative justice.
RESTORATIVE JUSTICE
VERSUS RETRIBUTIVE JUSTICE
Restorative Justice Retributive Justice
Emphasizes repairing harm caused by
the offense and restoring relationships
between the offender, victim, and
community.
Centers on punishing the offender as a
form of retribution for their wrongdoing.
Promotes rehabilitation and reintegration of the
offender into society. Seeks to establish a sense of
justice through punishment proportional to the severity
of the crime.
Involves dialogue and negotiation
between the victim and offender,
facilitated by a mediator. Encourages
accountability and understanding.
Involves legal proceedings where guilt is
determined, followed by imposition of a
punishment, such as imprisonment or
fines.
Typically involves restitution, community
service, or other measures aimed at
repairing the harm done.
The severity is often based on the nature
and gravity of the offense, with the aim
of balancing the scales of justice.
Strives for reconciliation and healing,
aiming to prevent future offenses by
addressing underlying issues.
Emphasizes deterrence and societal
order, assuming that punishment serves
as a deterrent to potential offenders.
Similarities
•Both restorative and retributive justice operate
within the broader criminal justice system.
•Both approaches aim to hold individuals
accountable for their actions.
•Both seek to contribute to maintaining social
order and preventing future criminal
behavior.
Differences
Restorative Justice Retributive Justice
Focuses on repairing harm, restoring
relationships, and promoting
rehabilitation through dialogue.
Emphasizes punishment as retribution,
seeking proportional consequences
through legal proceedings.
Involves active participation of the
offender, victim, and sometimes the
community to address harm.
Imposes punitive measures such as
imprisonment or fines to satisfy the
need for justice.
Focuses on repairing harm, restoring
relationships, and promoting
rehabilitation through dialogue.
Primarily concerned with deterrence,
retribution, and societal justice.
Emphasizes non-traditional sanctions
like restitution, community service, or
counseling.
Often follows standardized legal
penalties, with less room for
individualization.
Types
Restorative Justice Retributive Justice
Distributive Justice - Fair
distribution of resources and
benefits to repair harm.
Retributive Justice - Punishment
as a response to wrongdoing.
Corrective Justice - Addressing
imbalances through restitution
and rehabilitation.
Compensatory Justice - Seeking
compensation for victims through
punitive measures.
Social Justice - Fostering
community involvement and
healing.
Procedural Justice - Fair and
impartial legal procedures
Core Values of Restorative Justice
Offender
Apology - either written or oral, recognizing
responsibility and not
seeing oneself as a victim and realizing and
acknowledging the
harm suffered by the victim.
Reintegration – earning his or her place back in the
community
particularly through the action plan developed under
the healing the
harm process.
Victim
Harm – assessing what harm was done, developing a
case plan to
repair the harm and creating an action plan for those
responsible
for healing and repairing the harm.
Forgiveness – the opportunity is extended for the victim
to accept
an apology from the offender and to extend
forgiveness.
Community Relationship – healing broken relationships
and creating new ones.
Key Values of Restorative Justice
Value Effect Elements
Encounter
create opportunities for victims,
offenders and community members
who want to do so to meet to
discuss the crime and its aftermath
meeting, narrative, emotion,
understanding and agreement.
Amends expect offenders to take steps to
repair the harm they have caused
apology, changed behavior, restitution
and generosity
Reintegration
seeks to restore victims and
offenders as a whole, contributing
members of society
acknowledging human dignity and
worth, providing material assistance
and offering moral and spiritual direction
Inclusion provide opportunities for parties
with a stake in a specific crime to
participate in its resolution invitations, regulations of a society, the scales of justice becomes
acknowledgement that the person invited has unique imbalance and in order to restore balance, sanctions
interest and recognition that he or she might want to against the individual violator should
try alternative approaches be enforced, this will restore the balance of the scale.
Punishment is considered necessary and sufficient for
RETRIBUTIVE VS RESTORATIVE JUSTICE
the restitution of justice
UNDERSTANDING JUSTICE The psychological conceptions of Justice.........
Justice is the demand for a particular kind of order, or
for a system of order, and order is implemented in a
• Retributive Justice: When a person violates a law or
system of laws. The laws themselves establish a
the rules and regulations of a society, the scales of
particular morality. The morality follows from a theory
justice becomes imbalance and in order to restore
of ethics and when codified, is enforced by the state.
balance, sanctions against the individual violator should
Morality is the essence of society. Moralities however
be enforced, this will restore the balance of the scale.
differs from society to society as these societies
Punishment is considered necessary and sufficient for
themselves differ from each other. The morality of a
the restitution of justice. The offender does not need to
society is the kind of order which is suitable to that
agree with the punishment or does not need to show
society and therefore the only kind which can satisfy
remorse to the wrong he had done. But showing
justice.
remorse may lead to a more lenient punishment. But in
Justice is the demand for a system of laws.
concept, remorse is not essential in retributive justice.
The psychological conceptions of Justice The psychological conceptions of Justice.........
In general, there are two objectives to all responses in
JUSTICE RESTORATION
law breaking, that is:
• Restorative Justice: this represents a more
A. Behavioral Control; and
constructive form of justice restoration. Here, it is
B. Justice Restoration (Retribution)
understood that an offense is a form of conflict
This two objectives can be achieved by different means
between the victim, offender, and the community and it
either punitive or constructive
needs to be resolved through interaction between the
Behavioral control parties. Both the victim and the offender are given the
Behavioral control can be in a form of deterrence (both chance to express their views and emotions. This is
specific and general deterrence) and incapacitation geared toward making the offender take responsibility
through incarceration or confinement. This is a punitive and accountability for his actions, and express a sincere
means.; and Rehabilitation- training the person or re- apology to the victim, and the victim is encouraged to
educating the person means express willingness to forgive the offender.
that while they are incarcerated, they are expected to The psychological conceptions of Justice.........
take steps for their better adjustment to society, they
PRINCIPLES OF RESTORATIVE
are provided with support to learn new skills and
JUSTICE AND RESTORATION
expand their behavior repertoire and change
At the center of the restorative justice lies the
attitudes. This is a more constructive means towards
idea that crimes or wrongdoings are
behavior control where both parties (offenders and the
violations of people and relationship and that
reactors) work together.
the acceptance of responsibility is required
The psychological conceptions of Justice.........
before the process of restoration can begin,
JUSTICE RESTORATION the following are the basic principles in
• This is aimed at reestablishing some moral order and Restorative Justice:
sense of justice. This can be done in a form of meting
• Holding the wrongdoer directly accountable for the
out the punishment which is considered as a punitive or
individual victim and the specific community affected by
retributive; it can also be in a form of constructive
the wrong act;
through restorative justice.
• Requiring the wrongdoer to take direct responsibility
• When a person violates a law or the rules and
for making
"things whole again" to the degree that this is possible;
• Providing the victim(s) purposeful access to the courts
and correctional processes, which allows them to assist
in shaping the wrongdoers' obligations; and
• Encouraging the community to become directly
involved in supporting victims, holding wrongdoers
accountable, and providing opportunities for
wrongdoers to reintegrate into the community.
RETRIBUTIVE JUSTICE VS. RESTORATIVE JUSTICE
• Retribution is the dominant framework in modem
criminal law theory. From the view of retributive
justice, “crime is a violation of the state, defined
by lawbreaking and guilt" and “Justice determines
blame and administers pain in a contest between
the offender and the state directed by systematic
rules".
Retributive system is founded on the following
assumptions:
Crime is essentially lawbreaking;
when a law is broken, justice involves establishing
guilt;
Justice deserts can be meted out through inflicting
pain
Through a conflict in which rules and intentions are
placed above outcomes.
Retributive system is founded on the following
assumptions:
Crime is essentially lawbreaking;
when a law is broken, justice involves establishing
guilt;
Justice deserts can be meted out through inflicting
pain
Through a conflict in which rules and intentions are
placed above outcomes.
Assumptions in restorative justice
• Crime violates people and relationship
• Justice aims to identify needs and obligations so that
things can be made right
• Justice encourages dialogue and mutual agreement
• It gives victims and the offenders central roles
• Judged by the extent to which responsibilities are
assumed,needs met, and healing
Assumptions in restorative justice
• Crime violates people and relationship
• Justice aims to identify needs and obligations so that
things can be made right
• Justice encourages dialogue and mutual agreement
• It gives victims and the offenders central roles
• Judged by the extent to which responsibilities are
assumed, needs met, and healing
Retributive Justice Restorative Justice
Crime is an act against the state, a violation of a law, an
abstract idea Crime is an act against another person and
the community The criminal justice system controls
crime Crime control lies primarily in the community
Offender accountability defined as taking punishment
Accountability defined as assuming responsibility and
taking action to repair harm
Crime is an individual act with individual responsibility
Crime has both individual and social dimensions of
responsibility Punishment is effective:
Threats of punishment deter crime Punishment changes
behavior Punishment alone is not effective in changing
behavior and is disruptive to community harmony and
good relationships Victims are peripheral to the process
Victims are central to the process of resolving a crime.
The offender is defined by deficits The offender is
defined by capacity to make reparation
Focus on establishing blame or guilt, on the past (did
he/she do it?)Focus on the problem solving, on
liabilities/obligations,
on the future (what should be done?)
Retributive Justice Restorative Justice
Emphasis on adversarial relationship Emphasis on
dialogue and negotiation
Imposition of pain to punish and deter/prevent
Restitution as a means of restoring both parties;
goal of reconciliation/restoration
Community on sideline, represented abstractly by
state Community as facilitator in restorative process
Response focused on offender’s past behavior Response
focused on harmful consequences of
offender’s behavior; emphasis is on the future
Dependence upon proxy professionals Direct
involvement by participants
Review the Topic before opening your
assessment tasks
WEEK 4
METHODS, TECHNIQUES AND STRATEGIES OF Negotiation
CONCILIATION, ARBITRATION, NEGOTIATION AND Using negotiation as a method of conflict
MEDIATION resolution is popular because parties seek to
achieve a solution that respects each side's
Conciliation
perspectives while minimizing the negative
Conciliation is an ADR process where an
impact of the disagreement.
independent third party, the conciliator, helps
This process often involves open dialogue,
people in a dispute to identify the disputed issues,
active listening, compromise, and sometimes
develop options, consider alternatives and try to reach
concessions.
an agreement.
The process is flexible, allowing parties to define the Mediation
time, structure and content of the conciliation Mediation is a process during which the parties to a
proceedings. dispute meet together and separately in
confidence with a neutral and independent outside
Conciliation
party (the mediator) to explore and decide how the
A conciliator may have professional expertise in
conflict between them is to be resolved.
the subject matter in dispute and will generally
The mediator assists the parties in reaching an
provide advice about the issues and options for
agreement but has no power to impose a result
resolution. However, a conciliator will not make a
upon them.
judgment or decision about the dispute.
Conciliation may be voluntary, court ordered or Mediation
required as part of a contract. It is often part of a court The mediator does not make a decision, and the
or government agency process. parties may terminate the process at any time.
Mediation may be used in a variety of contexts
Arbitration
besides those which are court-connected or
Arbitration is a legal process in which a neutral
otherwise part of a legal intervention such in civil suits
third party, called an arbitrator, is used to
and in other contexts include interpersonal disputes in
resolve a dispute between two or more
private and public sector such as work places.
parties.
The arbitrator listens to the evidence and Mediation
arguments presented by each side and The main difference between conciliation and
makes a binding decision on the dispute. mediation proceedings is that, at some point
during the conciliation, the conciliator will be
Arbitration
asked by the parties to provide them with a
The arbitration process is often faster and less formal
non-binding settlement proposal. A mediator,
than going to court, and the parties can choose an
by contrast, will in most cases and as a matter
arbitrator who has expertise in the subject matter of the
of principle, refrain from making such a
dispute.
proposal.
Arbitration can be used to resolve a wide range of
disputes, including commercial, employment, and Mediation
consumer disputes. In some cases, arbitration may be Sometimes parties to a dispute use a combined
required by a contract or by law as a means of resolving process known as `med-arb’, in order to retain
disputes. the advantages of both mediation and
arbitration. If the mediator is unsuccessful in
Negotiation
resolving the dispute through the agreement of
Negotiation is the preeminent mode of dispute
the parties, then the mediator becomes an
resolution. While the two most known forms of
arbitrator with power to issue a binding decision.
ADR are arbitration and mediation, negotiation
is almost always attempted first to resolve a
dispute. Negotiation allows the parties to meet in order
Page
to settle a dispute.
MODULE 4
UNDERSTANDING ARBITRATION AND
MEDIATION
THE BENEFITS OF ARBITRATION
Proponents of ADR regularly argue that arbitration and
mediation
– the two primary ADR processes – reduce the
transaction cost of resolution and otherwise lead to
better outcomes.
In assessing the benefits and costs of these procedures
it is necessary to ask: Compared to what? Normally,
arbitration is compared with conventional litigation
(“adjudication”); mediation with unfacilitated
negotiation.
The proponents’ claims are best understood by
comparing adjudication, arbitration, negotiation and
mediation.
• Adjudication is an involuntary process, in the sense
that a court has the power (once its jurisdiction is
properly invoked by a plaintiff) to coerce a defendant
into either participating in the process or suffering the
consequences of a default judgment.
• The judge, a neutral third-party appointed by the
state, has the power and responsibility to run the
proceedings and to resolve the dispute.
• The judicial proceedings are highly structured, with
formal rules governing pre-trial discovery and the trial
itself – i.e. what counts as evidence, the order in which
evidence is presented and how arguments are made.
THE BENEFITS OF ARBITRATION........
ADJUDICATION VS ARBITRATION
• In reaching its decision, the adjudicator is responsible
for making a principled and reasoned decision based on
legal norms. The trial judge’s decisions are binding on
the parties, subject to appeal to a higher court.
• Finally, adjudication is a public process – the judge is a
public official, and the proceedings themselves are
ordinarily open to the public and not confidential.
THE BENEFITS OF ARBITRATION........
ADJUDICATION VS ARBITRATION
• Arbitration also involves a neutral third party (the
arbitrator) who is responsible for running the process
and making the decisions necessary to resolve the
dispute.
• Unlike a judge (a public official) the arbitrator is
typically a private person chosen by the parties.
• The person chosen to arbitrate the dispute often has
specialized expertise in the subject matter of the
dispute; legal training is required only if the parties so
specify.
• A dispute that might otherwise go to court becomes
subject to binding arbitration only by the agreement of
the parties.
ADJUDICATION VS ARBITRATION
THE BENEFITS OF ARBITRATION........
• In this sense, arbitration is a creature of contract, and
the terms of the parties’ particular arbitration
agreement are generally controlling.
• Before any dispute has arisen, parties often contract
to arbitrate future disputes; arbitration provisions are
frequently included in commercial contracts for the sale
of goods and services, in labor agreements
(Ashenfelter and Bloom 1984) and in joint ventures
agreements.
• An agreement to arbitrate can also be made after a
dispute has arisen, as the result of a negotiation
between parties already in conflict. Binding arbitration
in lieu of judicial adjudication is voluntary in the sense
that it is only by agreement that one is required to
arbitrate; but once there is an agreement it is
involuntary in the sense that courts will enforce it
against a reluctant party by refusing to adjudicate
disputes which are within the scope of the arbitration
agreement and thus require arbitration
ADJUDICATION VS ARBITRATION
• In an arbitration proceeding, the procedural rules may
be set by the parties in their
arbitration agreement. Pretrial discovery is typically
limited or eliminated, and each party is given an
opportunity to present proofs and arguments at a
hearing where the procedures are typically much less
formal than those found in court.
• Depending upon the parties’ agreement, the
arbitrator may or may not be asked to render a
principled decision supported by a reasoned opinion.
Often the arbitrator is free simply to announce the
award without any explanation. In “final-offer”
arbitration, by agreement of the parties the arbitrator is
required to resolve the dispute by choosing one or the
other of the “final-offers” submitted by the disputants –
the arbitrator lacks all power to impose any other result
(Farber 1980).
• (This is sometimes called “baseball arbitration” in the
United States because it is used to resolve salary
disputes in major league baseball.) In all of these, the
decision of the arbitrator is characteristically binding
and final, and subject to judicial review only if a party
can show that the arbitrator was corrupt or acting
outside the scope of the jurisdiction conferred by the
parties’ agreement.
THE BENEFITS OF ARBITRATION........
ADJUDICATION VS ARBITRATION
• The first has to do with the fact that parties can
choose the arbitrator, whereas a judge is typically
assigned. An arbitrator can be chosen with expertise in
the subject matter of the dispute, whereas a judge is
typically a generalist who Is knowledgeable about legal
procedures but may have no relevant experience and
background relevant to the dispute;
The BENEFIT OF ARBITRATION
• A second set of potential advantages relates to the
fact that an arbitration may proceed more quickly
because of its comparative procedural informality. In
conventional litigation, the costs of pre-trial discovery –
taking pretrial depositions and answering
interrogatories – can be very time-consuming and make
up a very high proportion of the total transaction costs.
Because arbitration typically either severely limits or
eliminates pre-trial discovery, these costs can be
eliminated.
The BENEFIT OF ARBITRATION
• The third critical difference relates to the scope of
judicial
review. Unlike rulings of a trial court which are subject
to appellate review for mistakes of law or findings of
fact that are unsupported by the evidence, an
arbitrator’s award cannot be overturned by an appellate
court for these sorts of errors. The binding nature and
comparative finality of an arbitrator’s award is, of
course, a mixed blessing. On the one hand, a final
resolution may be more prompt and appeals infrequent
because the scope of review is so narrow. On the other
hand, a losing party lacks the safeguard of ordinary
judicial review, which may improve the “accuracy” of
the resolution.
The BENEFIT OF ARBITRATION
NEGOTIATION AND MEDIATION
• Negotiation does not require the participation of a
neutral third party with decisional authority. Instead,
the parties themselves have the responsibility for
deciding the terms of any resolution.
• Negotiation is voluntary, in the sense that disputing
parties are not ordinarily forced to negotiate with each
other. The process of negotiation is informal and
without defined procedures or rules governing the
presentation of evidence or arguments.
• Because the goal of negotiation is a mutually
acceptable resolution, the parties to a negotiation can
shape that resolution to suit their own needs and
interests, and are under no obligation to reach a
principled outcome, much less one justified by a
reasoned opinion applying formal legal norms.
If resolution is reached, the settlement is not ordinarily
subject to judicial review. The settlement agreement
can subsequently be enforced as a contract. Negotiation
is typically private; the process itself is not open to the
public
• Mediation also involves the use of a third-party, but a
mediator unlike an arbitrator or judge has no authority
to impose a resolution on the parties.
• Instead, the mediator’s goal is to facilitate negotiation
and help the parties themselves to reach a mutually
acceptable
settlement of their own dispute.
• Mediation is typically a voluntary process where the
parties themselves may choose the person who will act
as the outside facilitator. It is private and confidential,
and not open to the public.
NEGOTIATION AND MEDIATION
• Although the mediator is typically responsible for
managing the mediation process, there are no standard
procedures or fixed rules. The process by which the
mediator facilitates negotiation is often informal and
unstructured.
• The actual practices of individual mediators vary
greatly. While most mediators spend at least some time
working with the parties together, practices vary
concerning the use of “caucuses”.
• Many but not all mediators also meet privately and
separately with each side in a “caucus”, often with an
explicit ground-rule that the mediator will not share
what is learned with the other side. Among other
things, this is thought to encourage each party to share
confidential information with the mediator. Although
such ex parte contact would ordinarily be considered
improper for a judge or arbitrator, mediators commonly
use such caucuses to explore various settlement
possibilities.
NEGOTIATION AND MEDIATION
Negotiation and........
• A mediated resolution may on the one hand simply
reflect the net expected value of what is likely to
happen in court or, on the other, can be shaped to meet
the needs and interests of the parties by making trades
that are unrelated to the legal disputes. So long as the
resulting resolution is mutually acceptable to the
parties, there is no need that it involve the application
of formal legal norms or mimic the outcome which a
court might impose. There is typically no process of
review. If parties are able to resolve their dispute by
reaching a mediated agreement, that agreement is
subsequently enforceable as a contract.
NEGOTIATION AND MEDIATION• A mediated resolution
may on the one hand simply reflect the net expected
value of what is likely to happen in court or, on the
other, can be shaped to meet the needs and interests of
the parties by making trades that are unrelated to the
legal disputes. So long as the resulting resolution is
mutually acceptable to the parties, there is no need that
it involve the application of formal legal norms or mimic
the outcome which a court might impose. There is
typically no process of review. If parties are able to
resolve their dispute by reaching a mediated
agreement, that agreement is subsequently enforceable
as a contract.
NEGOTIATION AND MEDIATION
What are the advantages of mediation?
• Proponents argue that a skilled mediator can often
help parties reach a negotiated outcome when they
would be unable to do so on their own.
• They also suggest that even if the parties might be
able eventually to settle on their own, a mediator may
help parties reach better agreements with lower
transaction costs – in other words, the mediated
agreement may often be Pareto-superior to the one the
parties might have reached on their own.
Review Before proceeding to your canvas for your quiz
WEEK 5
THE ALTERNATIVE DISPUTE RESOLUTION ACT OF 2004
(R.A. 9285) AND OTHER APPLICABLE POLICIES
AND ISSUANCES OF THE COURT OR AGENCY CONCERN
Advantages of ADR
•rapidity, confidentiality and flexibility.
•courts rarely overturn ADR decisions and awards if the
disputing parties formed a valid contract to abide by
them.
•potential means of avoiding the expense, delay and
uncertainty associated with traditional litigation.
Advantages of ADR
•intended as a vehicle for improving
communication between the parties.
•provides a forum for creative solutions to
disputes that better meet the needs of the
parties.
Agencies that use ADR
• The Katarungang Pambarangay under PD 1508
and later integrated into the Local Government
Code (RA 7160)
• The Cooperative Development Authority (CDA)
created by virtue of RA 6939
• The Philippine Construction Industry Arbitration
Commission (CIAC) created by Executive Order
No. 1008 to resolve cases involving contractual
claims within the industry.
Agencies that use ADR
• The Department of Agrarian Reform Adjudication
Board (DARAB) under the Department of Agrarian
Reform (DAR)
• The Philippine Dispute Resolution Center, Inc. which
is a private non-stock, nonprofit corporation
organized in 1996.
• The National Conciliation and Mediation Board
(NCMB) under the Department of Labor and
Employment (DOLE).
Agencies that use ADR
•The National Labor Relations Commission (NLRC)
under the Department of Labor and
Employment.
•The Bureau of Labor Relations (BLR) under the
DOLE concerned with settling labor disputes.
•The Commission on the Settlement of Land
Problems (COSLAP) under the Department of
Justice (DOJ).
Agencies that use ADR
• The Insurance Commission under the Department of
Finance tasked with resolving disputes in the insurance
industry.
• The Bureau of Trade Regulation and Consumer
Protection (BTRCP) under the Department of Trade and
Industry relative to complaints from consumers
involving violations of RA 7394.
• The Court-Annexed Pilot Mediation Project by the
Supreme Court.
Other forms of ADR
•early neutral evaluation
•neutral evaluation
•mini-trial
•mediation-arbitration
•a combination thereof
Exceptions to Application of ADR Act
•labor disputes covered by PD 442, otherwise
known as the “Labor Code of the
Philippines, as amended”, and its
Implementing Rules and Regulations
•the civil status of persons
•the validity of marriage
•any ground for legal separation
Exceptions to Application of ADR Act
•the jurisdiction of courts
•future legitime
•criminal liability
•those disputes which by law cannot be
compromised
•disputes referred to court-annexed mediation
Cases that must be referred to CAM
•all ordinary civil cases, civil cases covered by
the Rule on Summary Procedure (i.e.,
ejectment), and family law cases, except
those which cannot be compromised (i.e.,
those which involve civil status, validity of
marriage, legal separation, future support and
legitime);
Cases that must be referred to CAM
•all special civil actions, except declaratory
relief, review of Comelec and COA resolutions and final
orders, certiorari, prohibition and mandamus, quo
warranto, expropriation and contempt;
•claims against the estate, or distribution or partition of
estate in intestate proceedings;
Cases that must be referred to CAM
•intellectual property cases;
•commercial or intra-corporate controversies;
and
•environmental cases.
Cases that may not be referred to CAM
•those which cannot be compromised (i.e., those which
involve civil status, validity of
marriage, legal separation, future support
and legitime);
•petitions for habeas corpus;
•probate of a will; and
•cases with pending applications for TRO or
preliminary injunction.
Information obtained through mediation
proceedings shall be privileged and
confidential. A privilege arising from the confidentiality
of
information may be waived in a record, or
orally during a proceeding by the mediator and
the mediation parties.
Exceptions
•If mediation communication is:
•in an agreement authenticated by all parties
to the agreement;
•available to the public or that is made during
a session;
•a threat or statement of a plan to inflict
bodily injury or commit a crime of violence;
Exceptions
•internationally used to plan a crime, attempt
to commit, or commit a crime, or conceal
an ongoing crime or criminal activity;
•sought or offered to prove or disprove
abuse, neglect, abandonment, or
exploitation in a proceeding in which a
public agency is protecting the interest of
an individual protected by law;
Exceptions
• sought or offered to prove or disprove a claim or
complaint of professional misconduct or
malpractice filed against mediator in a
proceeding;
• sought or offered to prove or disprove a claim of
complaint of professional misconduct of
malpractice filed against a party, nonparty
participant, or representative of a party based on
conduct occurring during a mediation.
Exceptions
•If a court or administrative agency, finds that
there is a need for the evidence that is
sought or offered in:
•a court proceeding involving a crime or
felony;
•a proceeding to prove a claim or defense is
sufficient to reform or avoid a liability on a
contract arising out of the mediation.
Exceptions
•The mediator may not be compelled to provide
evidence of a mediation communication or testify in
such proceeding.
•If a mediation communication is not privileged
under any of above exception, only the
portion of the communication necessary for
the application of the exception for
nondisclosure may be admitted.
The ADR Act shall not be interpreted to repeal,
amend or modify the jurisdiction of the
Katarungang Pambarangay under Republic
Act No. 7160, otherwise known as the Local
Government Code of 1991.
ADR Provider means the institutions or persons
accredited as mediators, conciliators, arbitrators,
neutral evaluators or any person exercising similar
functions in any Alternative Dispute Resolution system.
This is without prejudice to the rights of the parties to
choose non-accredited individuals to act as mediator,
conciliator, arbitrator or neutral evaluator of their
dispute.
Alternative Dispute Resolution System means
any process or procedure used to resolve a
dispute or controversy, other than by adjudication of a
presiding judge of a court or an officer of a government
agency, as defined in the ADR Act, in which a neutral
third person participates to assist in the resolution of
issues, including arbitration, mediation, conciliation,
early neutral evaluation, mini-trial or any combination
thereof.
Government Agency means any governmental
entity, office or officer, other than a court, that is vested
by law with quasi-judicial power or the
power to resolve or adjudicate disputes involving the
government, its agencies and instrumentalities or
private persons.
Model Law means the Model Law on International
Commercial Arbitration adopted by the United Nations
Commission on International Trade Law on 21 June
1985.
Ad hoc Mediation means any mediation other
than institutional or court- annexed.
Institutional Mediation means any mediation
administered by, and conducted under the rules
of, a mediation institution.
Court-Annexed Mediation means any mediation
process conducted under the auspices of the
court and in accordance with Supreme Court
approved guidelines, after such court has
acquired jurisdiction of the dispute.
Court-Referred Mediation means mediation
ordered by a court to be conducted in
accordance with the agreement of the parties
when an action is prematurely commenced in
violation of such agreement.
Certified Mediator means a mediator certified
by the Office for ADR as having successfully
completed its regular professional training
program.
Mediation Party means a person who participates in a
mediation and whose consent is necessary to resolve
the dispute. Mediator means a person who conducts
mediation.
Mini-trial means a structured dispute resolution
method in which the merits of a case are argued
before a panel comprising of senior decision- Chief Officials and Offices
makers, with or without the presence of a neutral third •other barangay officials and members who may be
person, before which the parties seek a negotiated designated by law or ordinance and
settlement. charged with the maintenance of public order,
protection and security of life and property, or
Early Neutral Evaluation means an ADR process
the maintenance of a desirable and balanced
wherein parties and their lawyers are brought
environment, and any barangay member who
together early in the pre-trial phase to present
comes to the aid of persons in authority, shall
summaries of their cases and to receive a non-
be deemed agents of persons in authority.
binding assessment by an experienced neutral
person, with expertise in the subject matter or Lupong Tagapamayapa
substance of the dispute. • composed of the punong barangay, as chairman, and
Mediation-Arbitration or Med-Arb is a two-step • ten (10) to twenty (20) members
dispute resolution process involving mediation andthen • constituted every three (3) years
followed by arbitration. Pangkat ng Tagapagkasundo
• a conciliation panel
THE LOCAL GOVERNMENT
• consist of three (3) members who shall be chosen by
CODE OF 1991
the parties to the dispute from the list of members of
(R.A. 7160)
the Lupon.
Role of the Barangay
Functions of the Lupon
•serves as the primary planning and implementing
•Exercise administrative supervision over the
unit of government policies,
conciliation panels
•plans, programs, projects, and activities in the
•Meet regularly once a month to provide a
community,
forum for exchange of ideas among its
•a forum wherein the collective views of the
members and the public on matters relevant to
people may be expressed, crystallized and
the amicable settlement of disputes
considered,
•where disputes may be amicably settled. Functions of the Lupon
•Enable various conciliation panel members to
Chief Officials and Offices
share with one another their observations
•There shall be in each barangay a Punong
and experiences in effecting speedy
Barangay, seven (7) Sangguniang Barangay
resolution of disputes
Members, the Sangguniang Kabataan
•Exercise such other powers and perform such
Chairman, a Barangay Secretary, and a
other duties and functions as may be
Barangay Treasurer.
prescribed by law or ordinance
Chief Officials and Offices
The Lupon of each barangay shall have authority to
•There shall also be in every barangay a
bring together the parties actually residing in the same
Lupong Tagapamayapa. The Sangguniang
city or municipality for amicable settlement of all
Barangay may form community brigades and
disputes except:
create such other positions or offices as may
•Where one party is the government, or any
be deemed necessary to carry out the
subdivision or instrumentality thereof;
purposes of the barangay government in
•Where one party is a public officer or employee,
accordance with the needs of public service.
and the dispute relates to the performance of his official
Chief Officials and Offices functions;
•the Punong Barangay, Sangguniang Barangay
•Offenses punishable by imprisonment exceeding one
Members, and members of the Lupong
year or a fine exceeding P5,000.00;
Tagapamayapa in each barangay shall be
•Offenses where there is no private offended
deemed as persons in authority in their
party;
jurisdictions.
•Where the dispute involves real properties
located in different cities or municipalities unless the
parties thereto agree to submit their
differences to amicable settlement by an
appropriate Lupon;
•Disputes involving parties who actually reside in
barangays of different cities or municipalities,
except where such barangay units adjoin each
other and the parties thereto agree to submit
their differences to amicable settlement by an
appropriate Lupon;
•Such other classes of disputes which the President may
determine in the interest of Justice or upon the
recommendation of the Secretary of Justice.
Venue
•Disputes between persons actually residing in the
same barangay shall be brought for amicable
settlement before the Lupon of said barangay.
•Those involving actual residents of different
barangays within the same city or municipality
shall be brought in the barangay where the
respondent or any of the respondents actually
resides, at the election of the complaint.
Venue
•All disputes involving real property or any interest
therein shall be brought in the barangay where the real
property or the larger portion thereof is situated.
•Those arising at the workplace where the
contending parties are employed or at the
institution where such parties are enrolled for
study, shall be brought in the barangay where
such workplace or institution is located.
Pre-condition to Filing of Complaint
•there has been a confrontation between the parties
before the Lupon chairman or the Pangkat, and
•that no conciliation or settlement has been reached
as certified by the Lupon secretary or Pangkat
secretary as attested to by the Lupon or Pangkat
chairman, or
•the settlement has been repudiated by the parties
thereto.
Parties May Go Directly to Court
•accused is under detention;
•a person has been deprived of personal liberty
calling for habeas corpus proceedings;
•actions are coupled with provisional remedies such as
preliminary injunction, attachment, delivery of personal
property and support pendente lite; and
•action may otherwise be barred by the statute of
limitations.
Conciliation among members of indigenous
cultural communities. - The customs and
traditions of indigenous cultural communities
shall be applied in settling disputes between
members of the cultural communities.
Execution
•may be enforced by execution by the Lupon
within six (6) months from the date of the
settlement.
•after the lapse of such time, the settlement
may be enforced by action in the appropriate
city or municipal court.
Repudiation
•within ten (10) days from the date of the
settlement
•by filing with the Lupon chairman a statement to that
effect sworn to before him
•where the consent is vitiated by fraud, violence, or
intimidation
•such repudiation shall be sufficient basis for the
issuance of the certification for filing a
complaint
SPECIAL RULES OF COURT ON ALTERNATIVE DISPUTE
RESOLUTION
PART I
GENERAL PROVISIONS AND POLICIES
RULE 1: GENERAL PROVISIONS
Rule 1.1. Subject matter and governing rules.-The
Special Rules of Court on Alternative Dispute Resolution
(the "Special ADR Rules") shall apply to and govern the
following cases:
a. Relief on the issue of Existence, Validity, or
Enforceability of the Arbitration Agreement;
b. Referral to Alternative Dispute Resolution ("ADR");
c. Interim Measures of Protection;
d. Appointment of Arbitrator;
e. Challenge to Appointment of Arbitrator;
f. Termination of Mandate of Arbitrator;
g. Assistance in Taking Evidence;
h. Confirmation, Correction or Vacation of Award in
Domestic Arbitration;
i. Recognition and Enforcement or Setting Aside of an
Award in International Commercial Arbitration;
j. Recognition and Enforcement of a Foreign Arbitral
Award;
k. Confidentiality/Protective Orders; and
l. Deposit and Enforcement of Mediated Settlement
Agreements.
Rule 1.2. Nature of the proceedings.-All proceedings
under the Special ADR Rules are special proceedings.
Rule 1.3. Summary proceedings in certain cases.-The
proceedings in the following instances are summary in
nature and shall be governed by this provision:
a. Judicial Relief Involving the Issue of Existence, Validity
or Enforceability of the Arbitration Agreement;
b. Referral to ADR;
c. Interim Measures of Protection;
d. Appointment of Arbitrator;
e. Challenge to Appointment of Arbitrator;
f. Termination of Mandate of Arbitrator;
g. Assistance in Taking Evidence;
h. Confidentiality/Protective Orders; and
i. Deposit and Enforcement of Mediated Settlement
Agreements.
(A) Service and filing of petition in summary
proceedings.-The petitioner shall serve, either by
personal service or courier, a copy of the petition upon
the respondent before the filing thereof. Proof of
service shall be attached to the petition filed in court.
For personal service, proof of service of the petition
consists of the affidavit of the person who effected
service, stating the time, place and manner of the
service on the respondent. For service by courier, proof
of service consists of the signed courier proof of
delivery. If service is refused or has failed, the affidavit
or delivery receipt must state the circumstances of the
attempted service and refusal or failure thereof.
(B) Notice.-Except for cases involving Referral to ADR
and Confidentiality/Protective Orders made through
motions, the court shall, if it finds the petition sufficient
in form and substance, send notice to the parties
directing them to appear at a particular time and date
for the hearing thereof which shall be set no later than
five (5) days from the lapse of the period for filing the
opposition or comment. The notice to the respondent
shall contain a statement allowing him to file a
comment or opposition to the petition within fifteen
(15) days from receipt of the notice.
The motion filed pursuant to the rules on Referral to
ADR or Confidentiality/Protective Orders shall be set for
hearing by the movant and contain a notice of hearing
that complies with the requirements under Rule 15 of
the Rules of Court on motions.
(C) Summary hearing. - In all cases, as far as practicable,
the summary hearing shall be conducted in one (1) day
and only for purposes of clarifying facts.
Except in cases involving Referral to ADR or
Confidentiality/Protective Orders made through
motions, it shall be the court that sets the petition for
hearing within five (5) days from the lapse of the period
for filing the opposition or comment.
(D) Resolution. - The court shall resolve the matter
within a period of thirty (30) days from the day of the
hearing.
Rule 1.4. Verification and submissions. -Any pleading,
motion, opposition, comment, defense or claim filed
under the Special ADR Rules by the proper party shall be
supported by verified statements that the affiant has
read the same and that the factual allegations therein
are true and correct of his own personal knowledge or
based on authentic records and shall contain as annexes
the supporting documents.
The annexes to the pleading, motion, opposition,
comment, defense or claim filed by the proper party
may include a legal brief, duly verified by the lawyer
submitting it, stating the pertinent facts, the applicable
law and jurisprudence to justify the necessity for the
court to rule upon the issue raised.
Rule 1.5. Certification Against Forum Shopping. - A
Certification Against Forum Shopping is one made under
oath made by the petitioner or movant: (a) that he has
not theretofore commenced any action or filed any
claim involving the same issues in any court, tribunal or
quasi-judicial agency and, to the best of his knowledge,
no such other action or claim is pending therein; (b) if
there is such other pending action or claim, a complete
statement of the present status thereof; and (c) if he
should thereafter learn that the same or similar action
or claim has been filed or is pending, he shall report that
fact within five (5) days therefrom to the court wherein
his aforementioned petition or motion has been filed.
A Certification Against Forum Shopping shall be
appended to all initiatory pleadings except a Motion to
Refer the Dispute to Alternative Dispute Resolution.
Rule 1.6. Prohibited submissions. - The following
pleadings, motions, or petitions shall not be allowed in
the cases governed by the Special ADR Rules and shall
not be accepted for filing by the Clerk of Court:
a. Motion to dismiss;
b. Motion for bill of particulars;
c. Motion for new trial or for reopening of trial;
d. Petition for relief from judgment;
e. Motion for extension, except in cases where an ex-
parte temporary order of protection has been issued;
f. Rejoinder to reply;
g. Motion to declare a party in default; and
h. Any other pleading specifically disallowed under any
provision of the Special ADR Rules.
The court shall motu proprio order a pleading/motion
that it has determined to be dilatory in nature be
expunged from the records.
Rule 1.7. Computation of time. - In computing any
period of time prescribed or allowed by the Special ADR
Rules, or by order of the court, or by any applicable
statute, the day of the act or event from which the
designated period of time begins to run is to be
excluded and the date of performance included. If the
last day of the period, as thus computed, falls on a
Saturday, a Sunday, or a legal holiday in the place where
the court sits, the time shall not run until the next
working day.
Should an act be done which effectively interrupts the
running of the period, the allowable period after such
interruption shall start to run on the day after notice of
the cessation of the cause thereof.
The day of the act that caused the interruption shall be
excluded from the computation of the period.
Rule 1.8. Service and filing of pleadings, motions and
other papers in non-summary proceedings. - The
initiatory pleadings shall be filed directly with the court.
The court will then cause the initiatory pleading to be
served upon the respondent by personal service or
courier. Where an action is already pending, pleadings,
motions and other papers shall be filed and/or served
by the concerned party by personal service or courier.
Where courier services are not available, resort to
registered mail is allowed.
(A) Proof of filing. - The filing of a pleading shall be
proved by its existence in the record of the case. If it is
not in the record, but is claimed to have been filed
personally, the filing shall be proved by the written or
stamped acknowledgment of its filing by the clerk of
court on a copy of the same; if filed by courier, by the
proof of delivery from the courier company.
(B) Proof of service. - Proof of personal service shall
consist of a written admission by the party served, or
the official return of the server, or the affidavit of the
party serving, containing a full statement of the date,
place and manner of service. If the service is by courier,
proof thereof shall consist of an affidavit of the proper
person, stating facts showing that the document was
deposited with the courier company in a sealed
envelope, plainly addressed to the party at his office, if
known, otherwise at his residence, with postage fully
pre-paid, and with instructions to the courier to
immediately provide proof of delivery.
(C) Filing and service by electronic means and proof
thereof. - Filing and service of pleadings by electronic
transmission may be allowed by agreement of the
parties approved by the court. If the filing or service of a
pleading or motion was done by electronic
transmission, proof of filing and service shall be made in
accordance with the Rules on Electronic Evidence.
Rule 1.9. No summons. - In cases covered by the Special
ADR Rules, a court acquires authority to act on the
petition or motion upon proof of jurisdictional facts, i.e.,
that the respondent was furnished a copy of the
petition and the notice of hearing.
(A) Proof of service. - A proof of service of the petition
and notice of hearing upon respondent shall be made in
writing by the server and shall set forth the manner,
place and date of service.
(B) Burden of proof. - The burden of showing that a copy
of the petition and the notice of hearing were served on
the respondent rests on the petitioner.
The technical rules on service of summons do not apply
to the proceedings under the Special ADR Rules. In
instances where the respondent, whether a natural or a
juridical person, was not personally served with a copy
of the petition and notice of hearing in the proceedings
contemplated in the first paragraph of Rule 1.3 (B), or
the motion in proceedings contemplated in the second
paragraph of Rule 1.3 (B), the method of service
resorted to must be such as to reasonably ensure
receipt thereof by the respondent to satisfy the
requirement of due process.
Rule 1.10. Contents of petition/motion. - The initiatory
pleading in the form of a verified petition or motion, in
the appropriate case where court proceedings have
already commenced, shall include the names of the
parties, their addresses, the necessary allegations
supporting the petition and the relief(s) sought.
Rule 1.11. Definition. - The following terms shall have
the following meanings:
a. "ADR Laws" refers to the whole body of ADR laws in
the Philippines.
b. "Appointing Authority" shall mean the person or
institution named in the arbitration agreement as the
appointing authority; or the regular arbitration
institution under whose rule the arbitration is agreed to
be conducted. Where the parties have agreed to submit
their dispute to institutional arbitration rules, and
unless they have agreed to a different procedure, they
shall be deemed to have agreed to procedure under
such arbitration rules for the selection and appointment
of arbitrators. In ad hoc arbitration, the default
appointment of arbitrators shall be made by the
National President of the Integrated Bar of the
Philippines or his duly authorized representative.
c. "Authenticate" means to sign, execute or use a
symbol, or encrypt a record in whole or in part,
intended to identify the authenticating party and to
adopt, accept or establish the authenticity of a record or
term.
d. "Foreign Arbitral Award" is one made in a country
other than the Philippines.
e. "Legal Brief" is a written legal argument submitted to
a court, outlining the facts derived from the factual
statements in the witness’s statements of fact and citing
the legal authorities relied upon by a party in a case
submitted in connection with petitions, counter-
petitions (i.e., petitions to vacate or to set aside and/or
to correct/modify in opposition to petitions to confirm
or to recognize and enforce, or petitions to confirm or
to recognize and enforce in opposition to petitions to
vacate or set aside and/or correct/modify), motions,
evidentiary issues and other matters that arise during
the course of a case. The legal brief shall state the
applicable law and the relevant jurisprudence and the
legal arguments in support of a party’s position in the
case.
f. "Verification" shall mean a certification under oath by
a party or a person who has authority to act for a party
that he has read the pleading/motion, and that he
certifies to the truth of the facts stated therein on the
basis of his own personal knowledge or authentic
documents in his possession. When made by a lawyer,
verification shall mean a statement under oath by a
lawyer signing a pleading/motion for delivery to the
Court or to the parties that he personally prepared the
pleading/motion, that there is sufficient factual basis for
the statements of fact stated therein, that there is
sufficient basis in the facts and the law to support the
prayer for relief therein, and that the pleading/motion
is filed in good faith and is not interposed for delay.
Rule 1.12. Applicability of Part II on Specific Court Relief.
- Part II of the Special ADR Rules on Specific Court Relief,
insofar as it refers to arbitration, shall also be applicable
to other forms of ADR.
Rule 1.13. Spirit and intent of the Special ADR Rules. –
In situations where no specific rule is provided under
the Special ADR Rules, the court shall resolve such
matter summarily and be guided by the spirit and intent
of the Special ADR Rules and the ADR Laws.
RULE 2: STATEMENT OF POLICIES
Rule 2.1. General policies. - It is the policy of the State
to actively promote the use of various modes of ADR
and to respect party autonomy or the freedom of the
parties to make their own arrangements in the
resolution of disputes with the greatest cooperation of
and the least intervention from the courts. To this end,
the objectives of the Special ADR Rules are to
encourage and promote the use of ADR, particularly
arbitration and mediation, as an important means to
achieve speedy and efficient resolution of disputes,
impartial justice, curb a litigious culture and to de-clog
court dockets.
The court shall exercise the power of judicial review as
provided by these Special ADR Rules. Courts shall
intervene only in the cases allowed by law or these
Special ADR Rules.
Rule 2.2. Policy on arbitration.- (A) Where the parties
have agreed to submit their dispute to arbitration,
courts shall refer the parties to arbitration pursuant to
Republic Act No. 9285 bearing in mind that such
arbitration agreement is the law between the parties
and that they are expected to abide by it in good faith.
Further, the courts shall not refuse to refer parties to
arbitration for reasons including, but not limited to, the
following:
a. The referral tends to oust a court of its jurisdiction;
b. The court is in a better position to resolve the dispute
subject of arbitration;
c. The referral would result in multiplicity of suits;
d. The arbitration proceeding has not commenced;
e. The place of arbitration is in a foreign country;
f. One or more of the issues are legal and one or more
of the arbitrators are not lawyers;
g. One or more of the arbitrators are not Philippine
nationals; or
h. One or more of the arbitrators are alleged not to
possess the required qualification under the arbitration
agreement or law.
(B) Where court intervention is allowed under ADR Laws
or the Special ADR Rules, courts shall not refuse to grant
relief, as provided herein, for any of the following
reasons:
a. Prior to the constitution of the arbitral tribunal, the
court finds that the principal action is the subject of an
arbitration agreement; or
b. The principal action is already pending before an
arbitral tribunal.
The Special ADR Rules recognize the principle of
competence-competence, which means that the arbitral
tribunal may initially rule on its own jurisdiction,
including any objections with respect to the existence or
validity of the arbitration agreement or any condition
precedent to the filing of a request for arbitration.
The Special ADR Rules recognize the principle of
separability of the arbitration clause, which means that
said clause shall be treated as an agreement
independent of the other terms of the contract of which
it forms part. A decision that the contract is null and
void shall not entail ipso jure the invalidity of the
arbitration clause.
Rule 2.3. Rules governing arbitral proceedings. - The
parties are free to agree on the procedure to be
followed in the conduct of arbitral proceedings. Failing
such agreement, the arbitral tribunal may conduct
arbitration in the manner it considers appropriate.
Rule 2.4. Policy implementing competence-competence
principle. - The arbitral tribunal shall be accorded the
first opportunity or competence to rule on the issue of
whether or not it has the competence or jurisdiction to
decide a dispute submitted to it for decision, including
any objection with respect to the existence or validity of
the arbitration agreement. When a court is asked to
rule upon issue/s affecting the competence or
jurisdiction of an arbitral tribunal in a dispute brought
before it, either before or after the arbitral tribunal is
constituted, the court must exercise judicial restraint
and defer to the competence or jurisdiction of the
arbitral tribunal by allowing the arbitral tribunal the first
opportunity to rule upon such issues.
Where the court is asked to make a determination of
whether the arbitration agreement is null and void,
inoperative or incapable of being performed, under this
policy of judicial restraint, the court must make no more
than a prima facie determination of that issue.
Unless the court, pursuant to such prima facie
determination, concludes that the arbitration
agreement is null and void, inoperative or incapable of
being performed, the court must suspend the action
before it and refer the parties to arbitration pursuant to
the arbitration agreement.
Rule 2.5. Policy on mediation. - The Special ADR Rules
do not apply to Court-Annexed Mediation, which shall
be governed by issuances of the Supreme Court.
Where the parties have agreed to submit their dispute
to mediation, a court before which that dispute was
brought shall suspend the proceedings and direct the
parties to submit their dispute to private mediation. If
the parties subsequently agree, however, they may opt
to have their dispute settled through Court-Annexed
Mediation.
Rule 2.6. Policy on Arbitration-Mediation or Mediation-
Arbitration. - No arbitrator shall act as a mediator in any
proceeding in which he is acting as arbitrator; and all
negotiations towards settlement of the dispute must
take place without the presence of that arbitrator.
Conversely, no mediator shall act as arbitrator in any
proceeding in which he acted as mediator.
Rule 2.7. Conversion of a settlement agreement to an
arbitral award. - Where the parties to mediation have
agreed in the written settlement agreement that the
mediator shall become the sole arbitrator for the
dispute or that the settlement agreement shall become
an arbitral award, the sole arbitrator shall issue the
settlement agreement as an arbitral award, which shall
be subject to enforcement under the law.
PART II
SPECIFIC COURT RELIEF
RULE 3: JUDICIAL RELIEF INVOLVING THE ISSUE OF
EXISTENCE, VALIDITY AND ENFORCEABILITY OF THE
ARBITRATION AGREEMENT
Rule 3.1. When judicial relief is available. - The judicial
relief provided in Rule 3, whether resorted to before or
after commencement of arbitration, shall apply only
when the place of arbitration is in the Philippines.
A. Judicial Relief before Commencement of Arbitration
Rule 3.2. Who may file petition. - Any party to an
arbitration agreement may petition the appropriate
court to determine any question concerning the
existence, validity and enforceability of such arbitration
agreement serving a copy thereof on the respondent in
accordance with Rule 1.4 (A).
Rule 3.3. When the petition may be filed. - The petition
for judicial determination of the existence, validity
and/or enforceability of an arbitration agreement may
be filed at any time prior to the commencement of
arbitration.
Despite the pendency of the petition provided herein,
arbitral proceedings may nevertheless be commenced
and continue to the rendition of an award, while the
issue is pending before the court.
Rule 3.4. Venue. - A petition questioning the existence,
validity and enforceability of an arbitration agreement
may be filed before the Regional Trial Court of the place
where any of the petitioners or respondents has his
principal place of business or residence.
Rule 3.5. Grounds. - A petition may be granted only if it
is shown that the arbitration agreement is, under the
applicable law, invalid, void, unenforceable or
inexistent.
Rule 3.6. Contents of petition. - The verified petition
shall state the following:
a. The facts showing that the persons named as
petitioner or respondent have legal capacity to sue or
be sued;
b. The nature and substance of the dispute between the
parties;
c. The grounds and the circumstances relied upon by
the petitioner to establish his position; and
d. The relief/s sought.
Apart from other submissions, the petitioner must
attach to the petition an authentic copy of the
arbitration agreement.
Rule 3.7. Comment/Opposition.-The
comment/opposition of the respondent must be filed
within fifteen (15) days from service of the petition.
Rule 3.8. Court action. - In resolving the petition, the
court must exercise judicial restraint in accordance with
the policy set forth in Rule 2.4, deferring to the
competence or jurisdiction of the arbitral tribunal to
rule on its competence or jurisdiction.
Rule 3.9. No forum shopping. - A petition for judicial
relief under this Rule may not be commenced when the
existence, validity or enforceability of an arbitration
agreement has been raised as one of the issues in a
prior action before the same or another court.
Rule 3.10. Application for interim relief. - If the
petitioner also applies for an interim measure of
protection, he must also comply with the requirements
of the Special ADR Rules for the application for an
interim measure of protection.
Rule 3.11. Relief against court action. - Where there is a
prima facie determination upholding the arbitration
agreement.-A prima facie determination by the court
upholding the existence, validity or enforceability of an
arbitration agreement shall not be subject to a motion
for reconsideration, appeal or certiorari.
Such prima facie determination will not, however,
prejudice the right of any party to raise the issue of the
existence, validity and enforceability of the arbitration
agreement before the arbitral tribunal or the court in an
action to vacate or set aside the arbitral award. In the
latter case, the court’s review of the arbitral tribunal’s
ruling upholding the existence, validity or enforceability
of the arbitration agreement shall no longer be limited
to a mere prima facie determination of such issue or
issues as prescribed in this Rule, but shall be a full
review of such issue or issues with due regard, however,
to the standard for review for arbitral awards
prescribed in these Special ADR Rules.
B. Judicial Relief after Arbitration Commences
Rule 3.12. Who may file petition. - Any party to
arbitration may petition the appropriate court for
judicial relief from the ruling of the arbitral tribunal on a
preliminary question upholding or declining its
jurisdiction. Should the ruling of the arbitral tribunal
declining its jurisdiction be reversed by the court, the
parties shall be free to replace the arbitrators or any
one of them in accordance with the rules that were
applicable for the appointment of arbitrator sought to
be replaced.
Rule 3.13. When petition may be filed. - The petition
may be filed within thirty (30) days after having received
notice of that ruling by the arbitral tribunal.
Rule 3.14. Venue. - The petition may be filed before the
Regional Trial Court of the place where arbitration is
taking place, or where any of the petitioners or
respondents has his principal place of business or
residence.
Rule 3.15. Grounds. - The petition may be granted when
the court finds that the arbitration agreement is invalid,
inexistent or unenforceable as a result of which the
arbitral tribunal has no jurisdiction to resolve the
dispute.
Rule 3.16. Contents of petition. - The petition shall state
the following:
a. The facts showing that the person named as
petitioner or respondent has legal capacity to sue or be
sued;
b. The nature and substance of the dispute between the
parties;
c. The grounds and the circumstances relied upon by
the petitioner; and
d. The relief/s sought.
In addition to the submissions, the petitioner shall
attach to the petition a copy of the request for
arbitration and the ruling of the arbitral tribunal.
The arbitrators shall be impleaded as nominal parties to
the case and shall be notified of the progress of the
case.
Rule 3.17. Comment/Opposition. - The
comment/opposition must be filed within fifteen (15)
days from service of the petition.
Rule 3.18. Court action. - (A) Period for resolving the
petition.- The court shall render judgment on the basis
of the pleadings filed and the evidence, if any,
submitted by the parties, within thirty (30) days from
the time the petition is submitted for resolution.
(B) No injunction of arbitration proceedings. - The court
shall not enjoin the arbitration proceedings during the
pendency of the petition.
Judicial recourse to the court shall not prevent the
arbitral tribunal from continuing the proceedings and
rendering its award.
(C) When dismissal of petition is appropriate. - The court
shall dismiss the petition if it fails to comply with Rule
3.16 above; or if upon consideration of the grounds
alleged and the legal briefs submitted by the parties, the
petition does not appear to be prima facie meritorious.
Rule 3.19. Relief against court action. - The aggrieved
party may file a motion for reconsideration of the order
of the court. The decision of the court shall, however,
not be subject to appeal. The ruling of the court
affirming the arbitral tribunal’s jurisdiction shall not be
subject to a petition for certiorari. The ruling of the
court that the arbitral tribunal has no jurisdiction may
be the subject of a petition for certiorari.
Rule 3.20. Where no petition is allowed. - Where the
arbitral tribunal defers its ruling on preliminary question
regarding its jurisdiction until its final award, the
aggrieved party cannot seek judicial relief to question
the deferral and must await the final arbitral award
before seeking appropriate judicial recourse.
A ruling by the arbitral tribunal deferring resolution on
the issue of its jurisdiction until final award, shall not be
subject to a motion for reconsideration, appeal or a
petition for certiorari.
Rule 3.21. Rendition of arbitral award before court
decision on petition from arbitral tribunal’s preliminary
ruling on jurisdiction. - If the arbitral tribunal renders a
final arbitral award and the Court has not rendered a
decision on the petition from the arbitral tribunal’s
preliminary ruling affirming its jurisdiction, that petition
shall become ipso facto moot and academic and shall be
dismissed by the Regional Trial Court. The dismissal
shall be without prejudice to the right of the aggrieved
party to raise the same issue in a timely petition to
vacate or set aside the award.
Rule 3.22. Arbitral tribunal a nominal party. - The
arbitral tribunal is only a nominal party. The court shall
not require the arbitral tribunal to submit any pleadings
or written submissions but may consider the same
should the latter participate in the proceedings, but only
as nominal parties thereto.
RULE 4: REFERRAL TO ADR
Rule 4.1. Who makes the request. - A party to a pending
action filed in violation of the arbitration agreement,
whether contained in an arbitration clause or in a
submission agreement, may request the court to refer
the parties to arbitration in accordance with such
agreement.
Rule 4.2. When to make request. - (A) Where the
arbitration agreement exists before the action is filed. -
The request for referral shall be made not later than the
pre-trial conference. After the pre-trial conference, the
court will only act upon the request for referral if it is
made with the agreement of all parties to the case.
(B) Submission agreement. - If there is no existing
arbitration agreement at the time the case is filed but
the parties subsequently enter into an arbitration
agreement, they may request the court to refer their
dispute to arbitration at any time during the
proceedings.
Rule 4.3. Contents of request. - The request for referral
shall be in the form of a motion, which shall state that
the dispute is covered by an arbitration agreement.
Apart from other submissions, the movant shall attach
to his motion an authentic copy of the arbitration
agreement.
The request shall contain a notice of hearing addressed
to all parties specifying the date and time when it would
be heard. The party making the request shall serve it
upon the respondent to give him the opportunity to file
a comment or opposition as provided in the
immediately succeeding Rule before the hearing.
Rule 4.4. Comment/Opposition. - The
comment/opposition must be filed within fifteen (15)
days from service of the petition. The
comment/opposition should show that: (a) there is no
agreement to refer the dispute to arbitration; and/or (b)
the agreement is null and void; and/or (c) the subject-
matter of the dispute is not capable of settlement or
resolution by arbitration in accordance with Section 6 of
the ADR Act.
Rule 4.5. Court action. - After hearing, the court shall
stay the action and, considering the statement of policy
embodied in Rule 2.4, above, refer the parties to
arbitration if it finds prima facie, based on the pleadings
and supporting documents submitted by the parties,
that there is an arbitration agreement and that the
subject-matter of the dispute is capable of settlement or
resolution by arbitration in accordance with Section 6 of
the ADR Act. Otherwise, the court shall continue with
the judicial proceedings.
Rule 4.6. No reconsideration, appeal or certiorari. - An
order referring the dispute to arbitration shall be
immediately executory and shall not be subject to a
motion for reconsideration, appeal or petition for
certiorari.
An order denying the request to refer the dispute to
arbitration shall not be subject to an appeal, but may be
the subject of a motion for reconsideration and/or a
petition for certiorari.
Rule 4.7. Multiple actions and parties. - The court shall
not decline to refer some or all of the parties to
arbitration for any of the following reasons:
a. Not all of the disputes subject of the civil action may
be referred to arbitration;
b. Not all of the parties to the civil action are bound by
the arbitration agreement and referral to arbitration
would result in multiplicity of suits;
c. The issues raised in the civil action could be speedily
and efficiently resolved in its entirety by the court
rather than in arbitration;
d. Referral to arbitration does not appear to be the
most prudent action; or
e. The stay of the action would prejudice the rights of
the parties to the civil action who are not bound by the
arbitration agreement.
The court may, however, issue an order directing the
inclusion in arbitration of those parties who are not
bound by the arbitration agreement but who agree to
such inclusion provided those originally bound by it do
not object to their inclusion.
Rule 4.8. Arbitration to proceed.- Despite the pendency
of the action referred to in Rule 4.1, above, arbitral
proceedings may nevertheless be commenced or
continued, and an award may be made, while the action
is pending before the court.
RULE 5: INTERIM MEASURES OF PROTECTION
Rule 5.1. Who may ask for interim measures of
protection. - A party to an arbitration agreement may
petition the court for interim measures of protection.
Rule 5.2. When to petition. - A petition for an interim
measure of protection may be made (a) before
arbitration is commenced, (b) after arbitration is
commenced, but before the constitution of the arbitral
tribunal, or (c) after the constitution of the arbitral
tribunal and at any time during arbitral proceedings but,
at this stage, only to the extent that the arbitral tribunal
has no power to act or is unable to act effectively.
Rule 5.3. Venue. - A petition for an interim measure of
protection may be filed with the Regional Trial Court,
which has jurisdiction over any of the following places:
a. Where the principal place of business of any of the
parties to arbitration is located;
b. Where any of the parties who are individuals resides;
c. Where any of the acts sought to be enjoined are
being performed, threatened to be performed or not
being performed; or
d. Where the real property subject of arbitration, or a
portion thereof is situated.
Rule 5.4. Grounds. - The following grounds, while not
limiting the reasons for the court to grant an interim
measure of protection, indicate the nature of the
reasons that the court shall consider in granting the
relief:
a. The need to prevent irreparable loss or injury;
b. The need to provide security for the performance of
any obligation;
c. The need to produce or preserve evidence; or
d. The need to compel any other appropriate act or
omission.
Rule 5.5. Contents of the petition. - The verified petition
must state the following:
a. The fact that there is an arbitration agreement;
b. The fact that the arbitral tribunal has not been
constituted, or if constituted, is unable to act or would
be unable to act effectively;
c. A detailed description of the appropriate relief
sought;
d. The grounds relied on for the allowance of the
petition
Apart from other submissions, the petitioner must
attach to his petition an authentic copy of the
arbitration agreement.
Rule 5.6. Type of interim measure of protection that a
court may grant.- The following, among others, are the
interim measures of protection that a court may grant:
a. Preliminary injunction directed against a party to
arbitration;
b. Preliminary attachment against property or
garnishment of funds in the custody of a bank or a third
person;
c. Appointment of a receiver;
d. Detention, preservation, delivery or inspection of
property; or,
e. Assistance in the enforcement of an interim measure
of protection granted by the arbitral tribunal, which the
latter cannot enforce effectively.
Rule 5.7. Dispensing with prior notice in certain cases. -
Prior notice to the other party may be dispensed with
when the petitioner alleges in the petition that there is
an urgent need to either (a) preserve property, (b)
prevent the respondent from disposing of, or
concealing, the property, or (c) prevent the relief prayed
for from becoming illusory because of prior notice, and
the court finds that the reason/s given by the petitioner
are meritorious.
Rule 5.8. Comment/Opposition. - The
comment/opposition must be filed within fifteen (15)
days from service of the petition. The opposition or
comment should state the reasons why the interim
measure of protection should not be granted.
Rule 5.9. Court action. - After hearing the petition, the
court shall balance the relative interests of the parties
and inconveniences that may be caused, and on that
basis resolve the matter within thirty (30) days from (a)
submission of the opposition, or (b) upon lapse of the
period to file the same, or (c) from termination of the
hearing that the court may set only if there is a need for
clarification or further argument.
If the other parties fail to file their opposition on or
before the day of the hearing, the court shall motu
proprio render judgment only on the basis of the
allegations in the petition that are substantiated by
supporting documents and limited to what is prayed for
therein.
In cases where, based solely on the petition, the court
finds that there is an urgent need to either (a) preserve
property, (b) prevent the respondent from disposing of,
or concealing, the property, or (c) prevent the relief
prayed for from becoming illusory because of prior
notice, it shall issue an immediately executory
temporary order of protection and require the
petitioner, within five (5) days from receipt of that
order, to post a bond to answer for any damage that
respondent may suffer as a result of its order. The ex-
parte temporary order of protection shall be valid only
for a period of twenty (20) days from the service on the
party required to comply with the order. Within that
period, the court shall:
a. Furnish the respondent a copy of the petition and a
notice requiring him to comment thereon on or before
the day the petition will be heard; and
b. Notify the parties that the petition shall be heard on a
day specified in the notice, which must not be beyond
the twenty (20) day period of the effectivity of the ex-
parte order.
The respondent has the option of having the temporary
order of protection lifted by posting an appropriate
counter-bond as determined by the court.
If the respondent requests the court for an extension of
the period to file his opposition or comment or to reset
the hearing to a later date, and such request is granted,
the court shall extend the period of validity of the ex-
parte temporary order of protection for no more than
twenty days from expiration of the original period.
After notice and hearing, the court may either grant or
deny the petition for an interim measure of protection.
The order granting or denying any application for
interim measure of protection in aid of arbitration must
indicate that it is issued without prejudice to
subsequent grant, modification, amendment, revision
or revocation by an arbitral tribunal.
Rule 5.10. Relief against court action. - If respondent
was given an opportunity to be heard on a petition for
an interim measure of protection, any order by the
court shall be immediately executory, but may be the
subject of a motion for reconsideration and/or appeal
or, if warranted, a petition for certiorari.
Rule 5.11. Duty of the court to refer back. - The court
shall not deny an application for assistance in
implementing or enforcing an interim measure of
protection ordered by an arbitral tribunal on any or all
of the following grounds:
a. The arbitral tribunal granted the interim relief ex
parte; or
b. The party opposing the application found new
material evidence, which the arbitral tribunal had not
considered in granting in the application, and which, if
considered, may produce a different result; or
c. The measure of protection ordered by the arbitral
tribunal amends, revokes, modifies or is inconsistent
with an earlier measure of protection issued by the
court.
If it finds that there is sufficient merit in the opposition
to the application based on letter (b) above, the court
shall refer the matter back to the arbitral tribunal for
appropriate determination.
Rule 5.12. Security. - The order granting an interim
measure of protection may be conditioned upon the
provision of security, performance of an act, or
omission thereof, specified in the order.
The Court may not change or increase or decrease the
security ordered by the arbitral tribunal.
Rule 5.13. Modification, amendment, revision or
revocation of court’s previously issued interim measure
of protection. - Any court order granting or denying
interim measure/s of protection is issued without
prejudice to subsequent grant, modification,
amendment, revision or revocation by the arbitral
tribunal as may be warranted.
An interim measure of protection issued by the arbitral
tribunal shall, upon its issuance be deemed to have ipso
jure modified, amended, revised or revoked an interim
measure of protection previously issued by the court to
the extent that it is inconsistent with the subsequent
interim measure of protection issued by the arbitral
tribunal.
Rule 5.14. Conflict or inconsistency between interim
measure of protection issued by the court and by the
arbitral tribunal. - Any question involving a conflict or
inconsistency between an interim measure of
protection issued by the court and by the arbitral
tribunal shall be immediately referred by the court to
the arbitral tribunal which shall have the authority to
decide such question.
Rule 5.15. Court to defer action on petition for an
interim measure of protection when informed of
constitution of the arbitral tribunal. - The court shall
defer action on any pending petition for an interim
measure of protection filed by a party to an arbitration
agreement arising from or in connection with a dispute
thereunder upon being informed that an arbitral
tribunal has been constituted pursuant to such
agreement. The court may act upon such petition only if
it is established by the petitioner that the arbitral
tribunal has no power to act on any such interim
measure of protection or is unable to act thereon
effectively.
Rule 5.16. Court assistance should arbitral tribunal be
unable to effectively enforce interim measure of
protection. - The court shall assist in the enforcement of
an interim measure of protection issued by the arbitral
tribunal which it is unable to effectively enforce.
RULE 6: APPOINTMENT OF ARBITRATORS
Rule 6.1. When the court may act as Appointing
Authority. - The court shall act as Appointing Authority
only in the following instances:
a. Where any of the parties in an institutional
arbitration failed or refused to appoint an arbitrator or
when the parties have failed to reach an agreement on
the sole arbitrator (in an arbitration before a sole
arbitrator) or when the two designated arbitrators have
failed to reach an agreement on the third or presiding
arbitrator (in an arbitration before a panel of three
arbitrators), and the institution under whose rules
arbitration is to be conducted fails or is unable to
perform its duty as appointing authority within a
reasonable time from receipt of the request for
appointment;
b. In all instances where arbitration is ad hoc and the
parties failed to provide a method for appointing or
replacing an arbitrator, or substitute arbitrator, or the
method agreed upon is ineffective, and the National
President of the Integrated Bar of the Philippines (IBP)
or his duly authorized representative fails or refuses to
act within such period as may be allowed under the
pertinent rules of the IBP or within such period as may
be agreed upon by the parties, or in the absence
thereof, within thirty (30) days from receipt of such
request for appointment;
c. Where the parties agreed that their dispute shall be
resolved by three arbitrators but no method of
appointing those arbitrators has been agreed upon,
each party shall appoint one arbitrator and the two
arbitrators thus appointed shall appoint a third
arbitrator. If a party fails to appoint his arbitrator within
thirty (30) days of receipt of a request to do so from the
other party, or if the two arbitrators fail to agree on the
third arbitrator within a reasonable time from their
appointment, the appointment shall be made by the
Appointing Authority. If the latter fails or refuses to act
or appoint an arbitrator within a reasonable time from
receipt of the request to do so, any party or the
appointed arbitrator/s may request the court to appoint
an arbitrator or the third arbitrator as the case may be.
Rule 6.2. Who may request for appointment. - Any party
to an arbitration may request the court to act as an
Appointing Authority in the instances specified in Rule
6.1 above.
Rule 6.3. Venue. - The petition for appointment of
arbitrator may be filed, at the option of the petitioner,
in the Regional Trial Court (a) where the principal place
of business of any of the parties is located, (b) if any of
the parties are individuals, where those individuals
reside, or (c) in the National Capital Region.
Rule 6.4. Contents of the petition. -The petition shall
state the following:
a. The general nature of the dispute;
b. If the parties agreed on an appointment procedure, a
description of that procedure with reference to the
agreement where such may be found;
c. The number of arbitrators agreed upon or the
absence of any agreement as to the number of
arbitrators;
d. The special qualifications that the arbitrator/s must
possess, if any, that were agreed upon by the parties;
e. The fact that the Appointing Authority, without
justifiable cause, has failed or refused to act as such
within the time prescribed or in the absence thereof,
within a reasonable time, from the date a request is
made; and
f. The petitioner is not the cause of the delay in, or
failure of, the appointment of the arbitrator.
Apart from other submissions, the petitioner must
attach to the petition (a) an authentic copy of the
arbitration agreement, and (b) proof that the
Appointing Authority has been notified of the filing of
the petition for appointment with the court.
Rule 6.5. Comment/Opposition. - The
comment/opposition must be filed within fifteen (15)
days from service of the petition.
Rule 6.6. Submission of list of arbitrators. - The court
may, at its option, also require each party to submit a
list of not less than three (3) proposed arbitrators
together with their curriculum vitae.
Rule 6.7. Court action. - After hearing, if the court finds
merit in the petition, it shall appoint an arbitrator;
otherwise, it shall dismiss the petition.
In making the appointment, the court shall have regard
to such considerations as are likely to secure the
appointment of an independent and impartial
arbitrator.
At any time after the petition is filed and before the
court makes an appointment, it shall also dismiss the
petition upon being informed that the Appointing
Authority has already made the appointment.
Rule 6.8. Forum shopping prohibited. - When there is a
pending petition in another court to declare the
arbitration agreement inexistent, invalid,
unenforceable, on account of which the respondent
failed or refused to participate in the selection and
appointment of a sole arbitrator or to appoint a party-
nominated arbitrator, the petition filed under this rule
shall be dismissed.
Rule 6.9. Relief against court action. - If the court
appoints an arbitrator, the order appointing an
arbitrator shall be immediately executory and shall not
be the subject of a motion for reconsideration, appeal
or certiorari. An order of the court denying the petition
for appointment of an arbitrator may, however, be the
subject of a motion for reconsideration, appeal or
certiorari.
RULE 7: CHALLENGE TO APPOINTMENT OF
ARBITRATOR
Rule 7.1. Who may challenge. - Any of the parties to an
arbitration may challenge an arbitrator.
Rule 7.2. When challenge may be raised in court. -
When an arbitrator is challenged before the arbitral
tribunal under the procedure agreed upon by the
parties or under the procedure provided for in Article 13
(2) of the Model Law and the challenge is not
successful, the aggrieved party may request the
Appointing Authority to rule on the challenge, and it is
only when such Appointing Authority fails or refuses to
act on the challenge within such period as may be
allowed under the applicable rule or in the absence
thereof, within thirty (30) days from receipt of the
request, that the aggrieved party may renew the
challenge in court.
Rule 7.3. Venue. - The challenge shall be filed with the
Regional Trial Court (a) where the principal place of
business of any of the parties is located, (b) if any of the
parties are individuals, where those individuals reside,
or (c) in the National Capital Region.
Rule 7.4. Grounds. - An arbitrator may be challenged on
any of the grounds for challenge provided for in
Republic Act No. 9285 and its implementing rules,
Republic Act No. 876 or the Model Law. The nationality
or professional qualification of an arbitrator is not a
ground to challenge an arbitrator unless the parties
have specified in their arbitration agreement a
nationality and/or professional qualification for
appointment as arbitrator.
Rule 7.5. Contents of the petition. - The petition shall
state the following:
a. The name/s of the arbitrator/s challenged and
his/their address;
b. The grounds for the challenge;
c. The facts showing that the ground for the challenge
has been expressly or impliedly rejected by the
challenged arbitrator/s; and
d. The facts showing that the Appointing Authority
failed or refused to act on the challenge.
The court shall dismiss the petition motu proprio unless
it is clearly alleged therein that the Appointing Authority
charged with deciding the challenge, after the
resolution of the arbitral tribunal rejecting the challenge
is raised or contested before such Appointing Authority,
failed or refused to act on the challenge within thirty
(30) days from receipt of the request or within such
longer period as may apply or as may have been agreed
upon by the parties.
Rule 7.6. Comment/Opposition. - The challenged
arbitrator or other parties may file a comment or
opposition within fifteen (15) days from service of the
petition.
Rule 7.7. Court action. - After hearing, the court shall
remove the challenged arbitrator if it finds merit in the
petition; otherwise, it shall dismiss the petition.
The court shall allow the challenged arbitrator who
subsequently agrees to accept the challenge to
withdraw as arbitrator.
The court shall accept the challenge and remove the
arbitrator in the following cases:
a. The party or parties who named and appointed the
challenged arbitrator agree to the challenge and
withdraw the appointment.
b. The other arbitrators in the arbitral tribunal agree to
the removal of the challenged arbitrator; and
c. The challenged arbitrator fails or refuses to submit his
comment on the petition or the brief of legal arguments
as directed by the court, or in such comment or legal
brief, he fails to object to his removal following the
challenge.
The court shall decide the challenge on the basis of
evidence submitted by the parties.
The court will decide the challenge on the basis of the
evidence submitted by the parties in the following
instances:
a. The other arbitrators in the arbitral tribunal agree to
the removal of the challenged arbitrator; and
b. If the challenged arbitrator fails or refuses to submit
his comment on the petition or the brief of legal
arguments as directed by the court, or in such comment
or brief of legal arguments, he fails to object to his
removal following the challenge.
Rule 7.8. No motion for reconsideration, appeal or
certiorari. - Any order of the court resolving the petition
shall be immediately executory and shall not be the
subject of a motion for reconsideration, appeal, or
certiorari.
Rule 7.9. Reimbursement of expenses and reasonable
compensation to challenged arbitrator. - Unless the bad
faith of the challenged arbitrator is established with
reasonable certainty by concealing or failing to disclose
a ground for his disqualification, the challenged
arbitrator shall be entitled to reimbursement of all
reasonable expenses he may have incurred in attending
to the arbitration and to a reasonable compensation for
his work on the arbitration. Such expenses include, but
shall not be limited to, transportation and hotel
expenses, if any. A reasonable compensation shall be
paid to the challenged arbitrator on the basis of the
length of time he has devoted to the arbitration and
taking into consideration his stature and reputation as
an arbitrator. The request for reimbursement of
expenses and for payment of a reasonable
compensation shall be filed in the same case and in the
court where the petition to replace the challenged
arbitrator was filed. The court, in determining the
amount of the award to the challenged arbitrator, shall
receive evidence of expenses to be reimbursed, which
may consist of air tickets, hotel bills and expenses, and
inland transportation. The court shall direct the
challenging party to pay the amount of the award to the
court for the account of the challenged arbitrator, in
default of which the court may issue a writ of execution
to enforce the award.
RULE 8: TERMINATION OF THE MANDATE OF
ARBITRATOR
Rule 8.1. Who may request termination and on what
grounds.- Any of the parties to an arbitration may
request for the termination of the mandate of an
arbitrator where an arbitrator becomes de jure or de
facto unable to perform his function or for other
reasons fails to act without undue delay and that
arbitrator, upon request of any party, fails or refuses to
withdraw from his office.
Rule 8.2. When to request. - If an arbitrator refuses to
withdraw from his office, and subsequently, the
Appointing Authority fails or refuses to decide on the
termination of the mandate of that arbitrator within
such period as may be allowed under the applicable rule
or, in the absence thereof, within thirty (30) days from
the time the request is brought before him, any party
may file with the court a petition to terminate the
mandate of that arbitrator.
Rule 8.3. Venue. - A petition to terminate the mandate
of an arbitrator may, at that petitioner’s option, be filed
with the Regional Trial Court (a) where the principal
place of business of any of the parties is located, (b)
where any of the parties who are individuals resides, or
(c) in the National Capital Region.
Rule 8.4. Contents of the petition. - The petition shall
state the following:
a. The name of the arbitrator whose mandate is sought
to be terminated;
b. The ground/s for termination;
c. The fact that one or all of the parties had requested
the arbitrator to withdraw but he failed or refused to do
so;
d. The fact that one or all of the parties requested the
Appointing Authority to act on the request for the
termination of the mandate of the arbitrator and failure
or inability of the Appointing Authority to act within
thirty (30) days from the request of a party or parties or
within such period as may have been agreed upon by
the parties or allowed under the applicable rule.
The petitioner shall further allege that one or all of the
parties had requested the arbitrator to withdraw but he
failed or refused to do so.
Rule 8.5. Comment/Opposition. - The
comment/opposition must be filed within fifteen (15)
days from service of the petition.
Rule 8.6. Court action. - After hearing, if the court finds
merit in the petition, it shall terminate the mandate of
the arbitrator who refuses to withdraw from his office;
otherwise, it shall dismiss the petition.
Rule 8.7. No motion for reconsideration or appeal. - Any
order of the court resolving the petition shall be
immediately executory and shall not be subject of a
motion for reconsideration, appeal or petition for
certiorari.
Rule 8.8. Appointment of substitute arbitrator. - Where
the mandate of an arbitrator is terminated, or he
withdraws from office for any other reason, or because
of his mandate is revoked by agreement of the parties
or is terminated for any other reason, a substitute
arbitrator shall be appointed according to the rules that
were applicable to the appointment of the arbitrator
being replaced.
RULE 9: ASSISTANCE IN TAKING EVIDENCE
Rule 9.1. Who may request assistance. - Any party to an
arbitration, whether domestic or foreign, may request
the court to provide assistance in taking evidence.
Rule 9.2. When assistance may be sought. - Assistance
may be sought at any time during the course of the
arbitral proceedings when the need arises.
Rule 9.3. Venue. - A petition for assistance in taking
evidence may, at the option of the petitioner, be filed
with Regional Trial Court where (a) arbitration
proceedings are taking place, (b) the witnesses reside or
may be found, or (c) where the evidence may be found.
Rule 9.4. Ground. - The court may grant or execute the
request for assistance in taking evidence within its
competence and according to the rules of evidence.
Rule 9.5. Type of assistance. - A party requiring
assistance in the taking of evidence may petition the
court to direct any person, including a representative of
a corporation, association, partnership or other entity
(other than a party to the ADR proceedings or its
officers) found in the Philippines, for any of the
following:
a. To comply with a subpoena ad testificandum and/or
subpoena duces tecum;
b. To appear as a witness before an officer for the taking
of his deposition upon oral examination or by written
interrogatories;
c. To allow the physical examination of the condition of
persons, or the inspection of things or premises and,
when appropriate, to allow the recording and/or
documentation of condition of persons, things or
premises (i.e., photographs, video and other means of
recording/documentation);
d. To allow the examination and copying of documents;
and
e. To perform any similar acts.
Rule 9.6. Contents of the petition. - The petition must
state the following:
a. The fact that there is an ongoing arbitration
proceeding even if such proceeding could not continue
due to some legal impediments;
b. The arbitral tribunal ordered the taking of evidence
or the party desires to present evidence to the arbitral
tribunal;
c. Materiality or relevance of the evidence to be taken;
and
d. The names and addresses of the intended witness/es,
place where the evidence may be found, the place
where the premises to be inspected are located or the
place where the acts required are to be done.
Rule 9.7. Comment/Opposition. - The
comment/opposition must be filed within fifteen (15)
days from service of the petition.
Rule 9.8. Court action. - If the evidence sought is not
privileged, and is material and relevant, the court shall
grant the assistance in taking evidence requested and
shall order petitioner to pay costs attendant to such
assistance.
Rule 9.9. Relief against court action. - The order
granting assistance in taking evidence shall be
immediately executory and not subject to
reconsideration or appeal. If the court declines to grant
assistance in taking evidence, the petitioner may file a
motion for reconsideration or appeal.
Rule 9.10. Perpetuation of testimony before the arbitral
tribunal is constituted. - At anytime before arbitration is
commenced or before the arbitral tribunal is
constituted, any person who desires to perpetuate his
testimony or that of another person may do so in
accordance with Rule 24 of the Rules of Court.
Rule 9.11. Consequence of disobedience. - The court
may impose the appropriate sanction on any person
who disobeys its order to testify when required or
perform any act required of him.
RULE 10: CONFIDENTIALITY/PROTECTIVE ORDERS
Rule 10.1. Who may request confidentiality. - A party,
counsel or witness who disclosed or who was compelled
to disclose information relative to the subject of ADR
under circumstances that would create a reasonable
expectation, on behalf of the source, that the
information shall be kept confidential has the right to
prevent such information from being further disclosed
without the express written consent of the source or
the party who made the disclosure.
Rule 10.2. When request made. - A party may request a
protective order at anytime there is a need to enforce
the confidentiality of the information obtained, or to be
obtained, in ADR proceedings.
Rule 10.3. Venue. - A petition for a protective order may
be filed with the Regional Trial Court where that order
would be implemented.
If there is a pending court proceeding in which the
information obtained in an ADR proceeding is required
to be divulged or is being divulged, the party seeking to
enforce the confidentiality of the information may file a
motion with the court where the proceedings are
pending to enjoin the confidential information from
being divulged or to suppress confidential information.
Rule 10.4. Grounds. - A protective order may be granted
only if it is shown that the applicant would be materially
prejudiced by an unauthorized disclosure of the
information obtained, or to be obtained, during an ADR
proceeding.
Rule 10.5. Contents of the motion or petition. - The
petition or motion must state the following:
a. That the information sought to be protected was
obtained, or would be obtained, during an ADR
proceeding;
b. The applicant would be materially prejudiced by the
disclosure of that information;
c. The person or persons who are being asked to divulge
the confidential information participated in an ADR
proceedings; and
d. The time, date and place when the ADR proceedings
took place.
Apart from the other submissions, the movant must set
the motion for hearing and contain a notice of hearing
in accordance with Rule 15 of the Rules of Court.
Rule 10.6. Notice. - Notice of a request for a protective
order made through a motion shall be made to the
opposing parties in accordance with Rule 15 of the
Rules of Court.
Rule 10.7. Comment/Opposition. - The
comment/opposition must be filed within fifteen (15)
days from service of the petition. The opposition or
comment may be accompanied by written proof that (a)
the information is not confidential, (b) the information
was not obtained during an ADR proceeding, (c) there
was a waiver of confidentiality, or (d) the
petitioner/movant is precluded from asserting
confidentiality.
Rule 10.8. Court action. - If the court finds the petition
or motion meritorious, it shall issue an order enjoining a
person or persons from divulging confidential
information.
In resolving the petition or motion, the courts shall be
guided by the following principles applicable to all ADR
proceedings: Confidential information shall not be
subject to discovery and shall be inadmissible in any
adversarial proceeding, whether judicial or quasi
judicial. However, evidence or information that is
otherwise admissible or subject to discovery does not
become inadmissible or protected from discovery solely
by reason of its use therein.
For mediation proceedings, the court shall be further
guided by the following principles:
a. Information obtained through mediation shall be
privileged and confidential.
b. A party, a mediator, or a nonparty participant may
refuse to disclose and may prevent any other person
from disclosing a mediation communication.
c. In such an adversarial proceeding, the following
persons involved or previously involved in a mediation
may not be compelled to disclose confidential
information obtained during the mediation: (1) the
parties to the dispute; (2) the mediator or mediators;
(3) the counsel for the parties: (4) the nonparty
participants; (5) any persons hired or engaged in
connection with the mediation as secretary,
stenographer; clerk or assistant; and (6) any other
person who obtains or possesses confidential
information by reason of his/ her profession.
d. The protection of the ADR Laws shall continue to
apply even if a mediator is found to have failed to act
impartially.
e. A mediator may not be called to testify to provide
information gathered in mediation. A mediator who is
wrongfully subpoenaed shall be reimbursed the full cost
of his attorney fees and related expenses.
Rule 10.9. Relief against court action. - The order
enjoining a person or persons from divulging
confidential information shall be immediately executory
and may not be enjoined while the order is being
questioned with the appellate courts.
If the court declines to enjoin a person or persons from
divulging confidential information, the petitioner may
file a motion for reconsideration or appeal.
Rule 10.10. Consequence of disobedience. - Any person
who disobeys the order of the court to cease from
divulging confidential information shall be imposed the
proper sanction by the court.
RULE 11: CONFIRMATION, CORRECTION OR VACATION
OF AWARD IN DOMESTIC ARBITRATION
Rule 11.1. Who may request confirmation, correction or
vacation. - Any party to a domestic arbitration may
petition the court to confirm, correct or vacate a
domestic arbitral award.
Rule 11.2. When to request confirmation,
correction/modification or vacation. -
(A) Confirmation. - At any time after the lapse of thirty
(30) days from receipt by the petitioner of the arbitral
award, he may petition the court to confirm that award.
(B) Correction/Modification. - Not later than thirty (30)
days from receipt of the arbitral award, a party may
petition the court to correct/modify that award.
(C) Vacation. - Not later than thirty (30) days from
receipt of the arbitral award, a party may petition the
court to vacate that award.
(D) A petition to vacate the arbitral award may be filed,
in opposition to a petition to confirm the arbitral award,
not later than thirty (30) days from receipt of the award
by the petitioner. A petition to vacate the arbitral award
filed beyond the reglementary period shall be
dismissed.
(E) A petition to confirm the arbitral award may be filed,
in opposition to a petition to vacate the arbitral award,
at any time after the petition to vacate such arbitral
award is filed. The dismissal of the petition to vacate the
arbitral award for having been filed beyond the
reglementary period shall not result in the dismissal of
the petition for the confirmation of such arbitral award.
(F) The filing of a petition to confirm an arbitral award
shall not authorize the filing of a belated petition to
vacate or set aside such award in opposition thereto.
(G) A petition to correct an arbitral award may be
included as part of a petition to confirm the arbitral
award or as a petition to confirm that award.
Rule 11.3. Venue. - The petition for confirmation,
correction/modification or vacation of a domestic
arbitral award may be filed with Regional Trial Court
having jurisdiction over the place in which one of the
parties is doing business, where any of the parties
reside or where arbitration proceedings were
conducted.
Rule 11.4. Grounds. - (A) To vacate an arbitral award. -
The arbitral award may be vacated on the following
grounds:
a. The arbitral award was procured through corruption,
fraud or other undue means;
b. There was evident partiality or corruption in the
arbitral tribunal or any of its members;
c. The arbitral tribunal was guilty of misconduct or any
form of misbehavior that has materially prejudiced the
rights of any party such as refusing to postpone a
hearing upon sufficient cause shown or to hear
evidence pertinent and material to the controversy;
d. One or more of the arbitrators was disqualified to act
as such under the law and willfully refrained from
disclosing such disqualification; or
e. The arbitral tribunal exceeded its powers, or so
imperfectly executed them, such that a complete, final
and definite award upon the subject matter submitted
to them was not made.
The award may also be vacated on any or all of the
following grounds:
a. The arbitration agreement did not exist, or is invalid
for any ground for the revocation of a contract or is
otherwise unenforceable; or
b. A party to arbitration is a minor or a person judicially
declared to be incompetent.
The petition to vacate an arbitral award on the ground
that the party to arbitration is a minor or a person
judicially declared to be incompetent shall be filed only
on behalf of the minor or incompetent and shall allege
that (a) the other party to arbitration had knowingly
entered into a submission or agreement with such
minor or incompetent, or (b) the submission to
arbitration was made by a guardian or guardian ad litem
who was not authorized to do so by a competent court.
In deciding the petition to vacate the arbitral award, the
court shall disregard any other ground than those
enumerated above.
(B) To correct/modify an arbitral award. - The Court may
correct/modify or order the arbitral tribunal to
correct/modify the arbitral award in the following cases:
a. Where there was an evident miscalculation of figures
or an evident mistake in the description of any person,
thing or property referred to in the award;
b. Where the arbitrators have awarded upon a matter
not submitted to them, not affecting the merits of the
decision upon the matter submitted;
c. Where the arbitrators have omitted to resolve an
issue submitted to them for resolution; or
d. Where the award is imperfect in a matter of form not
affecting the merits of the controversy, and if it had
been a commissioner’s report, the defect could have
been amended or disregarded by the Court.
Rule 11.5. Form of petition. - An application to vacate an
arbitral award shall be in the form of a petition to
vacate or as a petition to vacate in opposition to a
petition to confirm the same award.
An application to correct/modify an arbitral award may
be included in a petition to confirm an arbitral award or
in a petition to vacate in opposition to confirm the same
award.
When a petition to confirm an arbitral award is pending
before a court, the party seeking to vacate or
correct/modify said award may only apply for those
reliefs through a petition to vacate or correct/modify
the award in opposition to the petition to confirm the
award provided that such petition to vacate or
correct/modify is filed within thirty (30) days from his
receipt of the award. A petition to vacate or
correct/modify an arbitral award filed in another court
or in a separate case before the same court shall be
dismissed, upon appropriate motion, as a violation of
the rule against forum-shopping.
When a petition to vacate or correct/modify an arbitral
award is pending before a court, the party seeking to
confirm said award may only apply for that relief
through a petition to confirm the same award in
opposition to the petition to vacate or correct/modify
the award. A petition to confirm or correct/modify an
arbitral award filed as separate proceeding in another
court or in a different case before the same court shall
be dismissed, upon appropriate motion, as a violation of
the rule against forum shopping.
As an alternative to the dismissal of a second petition
for confirmation, vacation or correction/modification of
an arbitral award filed in violation of the non-forum
shopping rule, the court or courts concerned may allow
the consolidation of the two proceedings in one court
and in one case.
Where the petition to confirm the award and petition to
vacate or correct/modify were simultaneously filed by
the parties in the same court or in different courts in the
Philippines, upon motion of either party, the court may
order the consolidation of the two cases before either
court.
In all instances, the petition must be verified by a
person who has knowledge of the jurisdictional facts.
Rule 11.6. Contents of petition. - The petition must state
the following:
a. The addresses of the parties and any change thereof;
b. The jurisdictional issues raised by a party during
arbitration proceedings;
c. The grounds relied upon by the parties in seeking the
vacation of the arbitral award whether the petition is a
petition for the vacation or setting aside of the arbitral
award or a petition in opposition to a petition to
confirm the award; and
d. A statement of the date of receipt of the arbitral
award and the circumstances under which it was
received by the petitioner.
Apart from other submissions, the petitioner must
attach to the petition the following:
a. An authentic copy of the arbitration agreement;
b. An authentic copy of the arbitral award;
c. A certification against forum shopping executed by
the applicant in accordance with Section 5 of Rule 7 of
the Rules of Court; and
d. An authentic copy or authentic copies of the
appointment of an arbitral tribunal.
Rule 11.7. Notice. - Upon finding that the petition filed
under this Rule is sufficient both in form and in
substance, the Court shall cause notice and a copy of
the petition to be delivered to the respondent allowing
him to file a comment or opposition thereto within
fifteen (15) days from receipt of the petition. In lieu of
an opposition, the respondent may file a petition in
opposition to the petition.
The petitioner may within fifteen (15) days from receipt
of the petition in opposition thereto file a reply.
Rule 11.8. Hearing. - If the Court finds from the petition
or petition in opposition thereto that there are issues of
fact, it shall require the parties, within a period of not
more than fifteen (15) days from receipt of the order, to
simultaneously submit the affidavits of all of their
witnesses and reply affidavits within ten (10) days from
receipt of the affidavits to be replied to. There shall be
attached to the affidavits or reply affidavits documents
relied upon in support of the statements of fact in such
affidavits or reply affidavits.
If the petition or the petition in opposition thereto is
one for vacation of an arbitral award, the interested
party in arbitration may oppose the petition or the
petition in opposition thereto for the reason that the
grounds cited in the petition or the petition in
opposition thereto, assuming them to be true, do not
affect the merits of the case and may be cured or
remedied. Moreover, the interested party may request
the court to suspend the proceedings for vacation for a
period of time and to direct the arbitral tribunal to
reopen and conduct a new hearing and take such other
action as will eliminate the grounds for vacation of the
award. The opposition shall be supported by a brief of
legal arguments to show the existence of a sufficient
legal basis for the opposition.
If the ground of the petition to vacate an arbitral award
is that the arbitration agreement did not exist, is invalid
or otherwise unenforceable, and an earlier petition for
judicial relief under Rule 3 had been filed, a copy of such
petition and of the decision or final order of the court
shall be attached thereto. But if the ground was raised
before the arbitral tribunal in a motion to dismiss filed
not later than the submission of its answer, and the
arbitral tribunal ruled in favor of its own jurisdiction as a
preliminary question which was appealed by a party to
the Regional Trial Court, a copy of the order, ruling or
preliminary award or decision of the arbitral tribunal,
the appeal therefrom to the Court and the order or
decision of the Court shall all be attached to the
petition.
If the ground of the petition is that the petitioner is an
infant or a person judicially declared to be incompetent,
there shall be attached to the petition certified copies of
documents showing such fact. In addition, the
petitioner shall show that even if the submission or
arbitration agreement was entered into by a guardian
or guardian ad litem, the latter was not authorized by a
competent court to sign such the submission or
arbitration agreement.
If on the basis of the petition, the opposition, the
affidavits and reply affidavits of the parties, the court
finds that there is a need to conduct an oral hearing, the
court shall set the case for hearing. This case shall have
preference over other cases before the court, except
criminal cases. During the hearing, the affidavits of
witnesses shall take the place of their direct testimonies
and they shall immediately be subject to cross-
examination thereon. The Court shall have full control
over the proceedings in order to ensure that the case is
heard without undue delay.
Rule 11.9. Court action. - Unless a ground to vacate an
arbitral award under Rule 11.5 above is fully
established, the court shall confirm the award.
An arbitral award shall enjoy the presumption that it
was made and released in due course of arbitration and
is subject to confirmation by the court
In resolving the petition or petition in opposition
thereto in accordance with these Special ADR Rules, the
court shall either confirm or vacate the arbitral award.
The court shall not disturb the arbitral tribunal’s
determination of facts and/or interpretation of law.
In a petition to vacate an award or in petition to vacate
an award in opposition to a petition to confirm the
award, the petitioner may simultaneously apply with
the Court to refer the case back to the same arbitral
tribunal for the purpose of making a new or revised
award or to direct a new hearing, or in the appropriate
case, order the new hearing before a new arbitral
tribunal, the members of which shall be chosen in the
manner provided in the arbitration agreement or
submission, or the law. In the latter case, any provision
limiting the time in which the arbitral tribunal may
make a decision shall be deemed applicable to the new
arbitral tribunal.
In referring the case back to the arbitral tribunal or to a
new arbitral tribunal pursuant to Rule 24 of Republic
Act No. 876, the court may not direct it to revise its
award in a particular way, or to revise its findings of fact
or conclusions of law or otherwise encroach upon the
independence of an arbitral tribunal in the making of a
final award.
RULE 12: RECOGNITION AND ENFORCEMENT OR
SETTING ASIDE OF AN INTERNATIONALCOMMERCIAL
ARBITRATION AWARD
Rule 12.1. Who may request recognition and
enforcement or setting aside. - Any party to an
international commercial arbitration in the Philippines
may petition the proper court to recognize and enforce
or set aside an arbitral award.
Rule 12.2. When to file petition. - (A) Petition to
recognize and enforce. - The petition for enforcement
and recognition of an arbitral award may be filed
anytime from receipt of the award. If, however, a timely
petition to set aside an arbitral award is filed, the
opposing party must file therein and in opposition
thereto the petition for recognition and enforcement of
the same award within the period for filing an
opposition.
(B) Petition to set aside. - The petition to set aside an
arbitral award may only be filed within three (3) months
from the time the petitioner receives a copy thereof. If a
timely request is made with the arbitral tribunal for
correction, interpretation or additional award, the three
(3) month period shall be counted from the time the
petitioner receives the resolution by the arbitral
tribunal of that request.
A petition to set aside can no longer be filed after the
lapse of the three (3) month period. The dismissal of a
petition to set aside an arbitral award for being time-
barred shall not automatically result in the approval of
the petition filed therein and in opposition thereto for
recognition and enforcement of the same award.
Failure to file a petition to set aside shall preclude a
party from raising grounds to resist enforcement of the
award.
Rule 12.3. Venue. - A petition to recognize and enforce
or set aside an arbitral award may, at the option of the
petitioner, be filed with the Regional Trial Court: (a)
where arbitration proceedings were conducted; (b)
where any of the assets to be attached or levied upon is
located; (c) where the act to be enjoined will be or is
being performed; (d) where any of the parties to
arbitration resides or has its place of business; or (e) in
the National Capital Judicial Region.
Rule 12.4. Grounds to set aside or resist enforcement. -
The court may set aside or refuse the enforcement of
the arbitral award only if:
a. The party making the application furnishes proof that:
(i). A party to the arbitration agreement was under
some incapacity, or the said agreement is not valid
under the law to which the parties have subjected it or,
failing any indication thereof, under Philippine law; or
(ii). The party making the application to set aside or
resist enforcement was not given proper notice of the
appointment of an arbitrator or of the arbitral
proceedings or was otherwise unable to present his
case; or
(iii). The award deals with a dispute not contemplated
by or not falling within the terms of the submission to
arbitration, or contains decisions on matters beyond the
scope of the submission to arbitration; provided that, if
the decisions on matters submitted to arbitration can be
separated from those not so submitted, only that part
of the award which contains decisions on matters not
submitted to arbitration may be set aside or only that
part of the award which contains decisions on matters
submitted to arbitration may be enforced; or
(iv). The composition of the arbitral tribunal or the
arbitral procedure was not in accordance with the
agreement of the parties, unless such agreement was in
conflict with a provision of Philippine law from which
the parties cannot derogate, or, failing such agreement,
was not in accordance with Philippine law;
b. The court finds that:
(i). The subject-matter of the dispute is not capable of
settlement by arbitration under the law of the
Philippines; or
(ii). The recognition or enforcement of the award would
be contrary to public policy.
In deciding the petition, the Court shall disregard any
other ground to set aside or enforce the arbitral award
other than those enumerated above.
The petition to set-aside or a pleading resisting the
enforcement of an arbitral award on the ground that a
party was a minor or an incompetent shall be filed only
on behalf of the minor or incompetent and shall allege
that (a) the other party to arbitration had knowingly
entered into a submission or agreement with such
minor or incompetent, or (b) the submission to
arbitration was made by a guardian or guardian ad litem
who was not authorized to do so by a competent court.
Rule 12.5. Exclusive recourse against arbitral award. -
Recourse to a court against an arbitral award shall be
made only through a petition to set aside the arbitral
award and on grounds prescribed by the law that
governs international commercial arbitration. Any other
recourse from the arbitral award, such as by appeal or
petition for review or petition for certiorari or
otherwise, shall be dismissed by the court.
Rule 12.6. Form. - The application to recognize and
enforce or set aside an arbitral award, whether made
through a petition to recognize and enforce or to set
aside or as a petition to set aside the award in
opposition thereto, or through a petition to set aside or
petition to recognize and enforce in opposition thereto,
shall be verified by a person who has personal
knowledge of the facts stated therein.
When a petition to recognize and enforce an arbitral
award is pending, the application to set it aside, if not
yet time-barred, shall be made through a petition to set
aside the same award in the same proceedings.
When a timely petition to set aside an arbitral award is
filed, the opposing party may file a petition for
recognition and enforcement of the same award in
opposition thereto.
Rule 12.7. Contents of petition. - (A) Petition to
recognize and enforce. - The petition to recognize and
enforce or petition to set aside in opposition thereto, or
petition to set aside or petition to recognize and enforce
in opposition thereto, shall state the following:
a. The addresses of record, or any change thereof, of
the parties to arbitration;
b. A statement that the arbitration agreement or
submission exists;
c. The names of the arbitrators and proof of their
appointment;
d. A statement that an arbitral award was issued and
when the petitioner received it; and
e. The relief sought.
Apart from other submissions, the petitioner shall
attach to the petition the following:
a. An authentic copy of the arbitration agreement;
b. An authentic copy of the arbitral award;
c. A verification and certification against forum shopping
executed by the applicant in accordance with Sections 4
and 5 of Rule 7 of the Rules of Court; and
d. An authentic copy or authentic copies of the
appointment of an arbitral tribunal.
(B) Petition to set aside. - The petition to set aside or
petition to set aside in opposition to a petition to
recognize and enforce an arbitral award in international
commercial arbitration shall have the same contents as
a petition to recognize and enforce or petition to
recognize and enforce in opposition to a petition to set
aside an arbitral award. In addition, the said petitions
should state the grounds relied upon to set it aside.
Further, if the ground of the petition to set aside is that
the petitioner is a minor or found incompetent by a
court, there shall be attached to the petition certified
copies of documents showing such fact. In addition, the
petitioner shall show that even if the submission or
arbitration agreement was entered into by a guardian
or guardian ad litem, the latter was not authorized by a
competent court to sign such the submission or
arbitration agreement.
In either case, if another court was previously requested
to resolve and/or has resolved, on appeal, the arbitral
tribunal’s preliminary determination in favor of its own
jurisdiction, the petitioner shall apprise the court before
which the petition to recognize and enforce or set aside
is pending of the status of the appeal or its resolution.
Rule 12.8. Notice. - Upon finding that the petition filed
under this Rule is sufficient both in form and in
substance, the court shall cause notice and a copy of
the petition to be delivered to the respondent directing
him to file an opposition thereto within fifteen (15) days
from receipt of the petition. In lieu of an opposition, the
respondent may file a petition to set aside in opposition
to a petition to recognize and enforce, or a petition to
recognize and enforce in opposition to a petition to set
aside.
The petitioner may within fifteen (15) days from receipt
of the petition to set aside in opposition to a petition to
recognize and enforce, or from receipt of the petition to
recognize and enforce in opposition to a petition to set
aside, file a reply.
Rule 12.9. Submission of documents. - If the court finds
that the issue between the parties is mainly one of law,
the parties may be required to submit briefs of legal
arguments, not more than fifteen (15) days from receipt
of the order, sufficiently discussing the legal issues and
the legal basis for the relief prayed for by each of them.
If the court finds from the petition or petition in
opposition thereto that there are issues of fact relating
to the ground(s) relied upon for the court to set aside, it
shall require the parties within a period of not more
than fifteen (15) days from receipt of the order
simultaneously to submit the affidavits of all of their
witnesses and reply affidavits within ten (10) days from
receipt of the affidavits to be replied to. There shall be
attached to the affidavits or reply affidavits, all
documents relied upon in support of the statements of
fact in such affidavits or reply affidavits.
Rule 12.10. Hearing. - If on the basis of the petition, the
opposition, the affidavits and reply affidavits of the
parties, the court finds that there is a need to conduct
an oral hearing, the court shall set the case for hearing.
This case shall have preference over other cases before
the court, except criminal cases. During the hearing, the
affidavits of witnesses shall take the place of their direct
testimonies and they shall immediately be subject to
cross-examination thereon. The court shall have full
control over the proceedings in order to ensure that the
case is heard without undue delay.
Rule 12.11. Suspension of proceedings to set aside. - The
court when asked to set aside an arbitral award may,
where appropriate and upon request by a party,
suspend the proceedings for a period of time
determined by it to give the arbitral tribunal an
opportunity to resume the arbitral proceedings or to
take such other action as in the arbitral tribunal’s
opinion will eliminate the grounds for setting aside. The
court, in referring the case back to the arbitral tribunal
may not direct it to revise its award in a particular way,
or to revise its findings of fact or conclusions of law or
otherwise encroach upon the independence of an
arbitral tribunal in the making of a final award.
The court when asked to set aside an arbitral award
may also, when the preliminary ruling of an arbitral
tribunal affirming its jurisdiction to act on the matter
before it had been appealed by the party aggrieved by
such preliminary ruling to the court, suspend the
proceedings to set aside to await the ruling of the court
on such pending appeal or, in the alternative,
consolidate the proceedings to set aside with the earlier
appeal.
Rule 12.12. Presumption in favor of confirmation. - It is
presumed that an arbitral award was made and
released in due course and is subject to enforcement by
the court, unless the adverse party is able to establish a
ground for setting aside or not enforcing an arbitral
award.
Rule 12.13. Judgment of the court. - Unless a ground to
set aside an arbitral award under Rule 12.4 above is
fully established, the court shall dismiss the petition. If,
in the same proceedings, there is a petition to recognize
and enforce the arbitral award filed in opposition to the
petition to set aside, the court shall recognize and
enforce the award.
In resolving the petition or petition in opposition
thereto in accordance with the Special ADR Rules, the
court shall either set aside or enforce the arbitral
award. The court shall not disturb the arbitral tribunal’s
determination of facts and/or interpretation of law.
Rule 12.14. Costs. - Unless otherwise agreed upon by
the parties in writing, at the time the case is submitted
to the court for decision, the party praying for
recognition and enforcement or setting aside of an
arbitral award shall submit a statement under oath
confirming the costs he has incurred only in the
proceedings for such recognition and enforcement or
setting aside. The costs shall include the attorney’s fees
the party has paid or is committed to pay to his counsel
of record.
The prevailing party shall be entitled to an award of
costs, which shall include reasonable attorney’s fees of
the prevailing party against the unsuccessful party. The
court shall determine the reasonableness of the claim
for attorney’s fees.
RULE 13: RECOGNITION AND ENFORCEMENT OF A
FOREIGN ARBITRAL AWARD
Rule 13.1. Who may request recognition and
enforcement. - Any party to a foreign arbitration may
petition the court to recognize and enforce a foreign
arbitral award.
Rule 13.2. When to petition. - At any time after receipt
of a foreign arbitral award, any party to arbitration may
petition the proper Regional Trial Court to recognize
and enforce such award.
Rule 13.3. Venue. - The petition to recognize and
enforce a foreign arbitral award shall be filed, at the
option of the petitioner, with the Regional Trial Court
(a) where the assets to be attached or levied upon is
located, (b) where the act to be enjoined is being
performed, (c) in the principal place of business in the
Philippines of any of the parties, (d) if any of the parties
is an individual, where any of those individuals resides,
or (e) in the National Capital Judicial Region.
Rule 13.4. Governing law and grounds to refuse
recognition and enforcement. - The recognition and
enforcement of a foreign arbitral award shall be
governed by the 1958 New York Convention on the
Recognition and Enforcement of Foreign Arbitral
Awards (the "New York Convention") and this Rule. The
court may, upon grounds of comity and reciprocity,
recognize and enforce a foreign arbitral award made in
a country that is not a signatory to the New York
Convention as if it were a Convention Award.
A Philippine court shall not set aside a foreign arbitral
award but may refuse it recognition and enforcement
on any or all of the following grounds:
a. The party making the application to refuse
recognition and enforcement of the award furnishes
proof that:
(i). A party to the arbitration agreement was under
some incapacity; or the said agreement is not valid
under the law to which the parties have subjected it or,
failing any indication thereof, under the law of the
country where the award was made; or
(ii). The party making the application was not given
proper notice of the appointment of an arbitrator or of
the arbitral proceedings or was otherwise unable to
present his case; or
(iii). The award deals with a dispute not contemplated
by or not falling within the terms of the submission to
arbitration, or contains decisions on matters beyond the
scope of the submission to arbitration; provided that, if
the decisions on matters submitted to arbitration can be
separated from those not so submitted, only that part
of the award which contains decisions on matters not
submitted to arbitration may be set aside; or
(iv). The composition of the arbitral tribunal or the
arbitral procedure was not in accordance with the
agreement of the parties or, failing such agreement,
was not in accordance with the law of the country
where arbitration took place; or
(v). The award has not yet become binding on the
parties or has been set aside or suspended by a court of
the country in which that award was made; or
b. The court finds that:
(i). The subject-matter of the dispute is not capable of
settlement or resolution by arbitration under Philippine
law; or
(ii). The recognition or enforcement of the award would
be contrary to public policy.
The court shall disregard any ground for opposing the
recognition and enforcement of a foreign arbitral award
other than those enumerated above.
Rule 13.5. Contents of petition. - The petition shall state
the following:
a. The addresses of the parties to arbitration;
b. In the absence of any indication in the award, the
country where the arbitral award was made and
whether such country is a signatory to the New York
Convention; and
c. The relief sought.
Apart from other submissions, the petition shall have
attached to it the following:
a. An authentic copy of the arbitration agreement; and
b. An authentic copy of the arbitral award.
If the foreign arbitral award or agreement to arbitrate
or submission is not made in English, the petitioner shall
also attach to the petition a translation of these
documents into English. The translation shall be
certified by an official or sworn translator or by a
diplomatic or consular agent.
Rule 13.6. Notice and opposition. - Upon finding that
the petition filed under this Rule is sufficient both in
form and in substance, the court shall cause notice and
a copy of the petition to be delivered to the respondent
allowing him to file an opposition thereto within thirty
(30) days from receipt of the notice and petition.
Rule 13.7. Opposition. - The opposition shall be verified
by a person who has personal knowledge of the facts
stated therein.
Rule 13.8. Submissions. - If the court finds that the issue
between the parties is mainly one of law, the parties
may be required to submit briefs of legal arguments,
not more than thirty (30) days from receipt of the order,
sufficiently discussing the legal issues and the legal
bases for the relief prayed for by each other.
If, from a review of the petition or opposition, there are
issues of fact relating to the ground/s relied upon for
the court to refuse enforcement, the court shall, motu
proprio or upon request of any party, require the parties
to simultaneously submit the affidavits of all of their
witnesses within a period of not less than fifteen (15)
days nor more than thirty (30) days from receipt of the
order. The court may, upon the request of any party,
allow the submission of reply affidavits within a period
of not less than fifteen (15) days nor more than thirty
(30) days from receipt of the order granting said
request. There shall be attached to the affidavits or
reply affidavits all documents relied upon in support of
the statements of fact in such affidavits or reply
affidavits.
Rule 13.9. Hearing. - The court shall set the case for
hearing if on the basis of the foregoing submissions
there is a need to do so. The court shall give due priority
to hearings on petitions under this Rule. During the
hearing, the affidavits of witnesses shall take the place
of their direct testimonies and they shall immediately
be subject to cross-examination. The court shall have
full control over the proceedings in order to ensure that
the case is heard without undue delay.
Rule 13.10. Adjournment/deferment of decision on
enforcement of award. - The court before which a
petition to recognize and enforce a foreign arbitral
award is pending, may adjourn or defer rendering a
decision thereon if, in the meantime, an application for
the setting aside or suspension of the award has been
made with a competent authority in the country where
the award was made. Upon application of the
petitioner, the court may also require the other party to
give suitable security.
Rule 13.11. Court action. - It is presumed that a foreign
arbitral award was made and released in due course of
arbitration and is subject to enforcement by the court.
The court shall recognize and enforce a foreign arbitral
award unless a ground to refuse recognition or
enforcement of the foreign arbitral award under this
rule is fully established.
The decision of the court recognizing and enforcing a
foreign arbitral award is immediately executory.
In resolving the petition for recognition and
enforcement of a foreign arbitral award in accordance
with these Special ADR Rules, the court shall either [a]
recognize and/or enforce or [b] refuse to recognize and
enforce the arbitral award. The court shall not disturb
the arbitral tribunal’s determination of facts and/or
interpretation of law.
Rule 13.12. Recognition and enforcement of non-
convention award. - The court shall, only upon grounds
provided by these Special ADR Rules, recognize and
enforce a foreign arbitral award made in a country not a
signatory to the New York Convention when such
country extends comity and reciprocity to awards made
in the Philippines. If that country does not extend
comity and reciprocity to awards made in the
Philippines, the court may nevertheless treat such
award as a foreign judgment enforceable as such under
Rule 39, Section 48, of the Rules of Court.
PART III
PROVISIONS SPECIFIC TO MEDIATION
RULE 14: GENERAL PROVISIONS
Rule 14.1. Application of the rules on arbitration. -
Whenever applicable and appropriate, the pertinent
rules on arbitration shall be applied in proceedings
before the court relative to a dispute subject to
mediation.
RULE 15: DEPOSIT AND ENFORCEMENT OF MEDIATED
SETTLEMENT AGREEMENTS
Rule 15.1. Who makes a deposit. - Any party to a
mediation that is not court-annexed may deposit with
the court the written settlement agreement, which
resulted from that mediation.
Rule 15.2. When deposit is made. - At any time after an
agreement is reached, the written settlement
agreement may be deposited.
Rule 15.3. Venue. - The written settlement agreement
may be jointly deposited by the parties or deposited by
one party with prior notice to the other party/ies with
the Clerk of Court of the Regional Trial Court (a) where
the principal place of business in the Philippines of any
of the parties is located; (b) if any of the parties is an
individual, where any of those individuals resides; or (c)
in the National Capital Judicial Region.
Rule 15.4. Registry Book. - The Clerk of Court of each
Regional Trial Court shall keep a Registry Book that shall
chronologically list or enroll all the mediated settlement
agreements/settlement awards that are deposited with
the court as well as the names and address of the
parties thereto and the date of enrollment and shall
issue a Certificate of Deposit to the party that made the
deposit.
Rule 15.5. Enforcement of mediated settlement
agreement. - Any of the parties to a mediated
settlement agreement, which was deposited with the
Clerk of Court of the Regional Trial Court, may, upon
breach thereof, file a verified petition with the same
court to enforce said agreement.
Rule 15.6. Contents of petition. - The verified petition
shall:
a. Name and designate, as petitioner or respondent, all
parties to the mediated settlement agreement and
those who may be affected by it;
b. State the following:
(i). The addresses of the petitioner and respondents;
and
(ii). The ultimate facts that would show that the adverse
party has defaulted to perform its obligation under said
agreement; and
c. Have attached to it the following:
(i). An authentic copy of the mediated settlement
agreement; and
(ii). Certificate of Deposit showing that the mediated
settlement agreement was deposited with the Clerk of
Court.
Rule 15.7. Opposition. - The adverse party may file an
opposition, within fifteen (15) days from receipt of
notice or service of the petition, by submitting written
proof of compliance with the mediated settlement
agreement or such other affirmative or negative
defenses it may have.
Rule 15.8. Court action. - After a summary hearing, if
the court finds that the agreement is a valid mediated
settlement agreement, that there is no merit in any of
the affirmative or negative defenses raised, and the
respondent has breached that agreement, in whole or
in part, the court shall order the enforcement thereof;
otherwise, it shall dismiss the petition.
PART IV
PROVISIONS SPECIFIC TO CONSTRUCTION
ARBITRATION
RULE 16: GENERAL PROVISIONS
Rule 16.1. Application of the rules on arbitration. -
Whenever applicable and appropriate, the rules on
arbitration shall be applied in proceedings before the
court relative to a dispute subject to construction
arbitration.
RULE 17: REFERRAL TO CIAC
Rule 17.1. Dismissal of action. - A Regional Trial Court
before which a construction dispute is filed shall, upon
becoming aware that the parties have entered into an
arbitration agreement, motu proprio or upon motion
made not later than the pre-trial, dismiss the case and
refer the parties to arbitration to be conducted by the
Construction Industry Arbitration Commission (CIAC),
unless all parties to arbitration, assisted by their
respective counsel, submit to the court a written
agreement making the court, rather than the CIAC, the
body that would exclusively resolve the dispute.
Rule 17.2. Form and contents of motion. - The request
for dismissal of the civil action and referral to
arbitration shall be through a verified motion that shall
(a) contain a statement showing that the dispute is a
construction dispute; and (b) be accompanied by proof
of the existence of the arbitration agreement.
If the arbitration agreement or other document
evidencing the existence of that agreement is already
part of the record, those documents need not be
submitted to the court provided that the movant has
cited in the motion particular references to the records
where those documents may be found.
The motion shall also contain a notice of hearing
addressed to all parties and shall specify the date and
time when the motion will be heard, which must not be
later than fifteen (15) days after the filing of the motion.
The movant shall ensure receipt by all parties of the
motion at least three days before the date of the
hearing.
Rule 17.3. Opposition. - Upon receipt of the motion to
refer the dispute to arbitration by CIAC, the other party
may file an opposition to the motion on or before the
day such motion is to be heard. The opposition shall
clearly set forth the reasons why the court should not
dismiss the case.
Rule 17.4. Hearing. - The court shall hear the motion
only once and for the purpose of clarifying relevant
factual and legal issues.
Rule 17.5. Court action. - If the other parties fail to file
their opposition on or before the day of the hearing, the
court shall motu proprio resolve the motion only on the
basis of the facts alleged in the motion.
After hearing, the court shall dismiss the civil action and
refer the parties to arbitration if it finds, based on the
pleadings and supporting documents submitted by the
parties, that there is a valid and enforceable arbitration
agreement involving a construction dispute. Otherwise,
the court shall proceed to hear the case.
All doubts shall be resolved in favor of the existence of a
construction dispute and the arbitration agreement.
Rule 17.6. Referral immediately executory. - An order
dismissing the case and referring the dispute to
arbitration by CIAC shall be immediately executory.
Rule 17.7. Multiple actions and parties. - The court shall
not decline to dismiss the civil action and make a
referral to arbitration by CIAC for any of the following
reasons:
a. Not all of the disputes subject of the civil action may
be referred to arbitration;
b. Not all of the parties to the civil action are bound by
the arbitration agreement and referral to arbitration
would result in multiplicity of suits;
c. The issues raised in the civil action could be speedily
and efficiently resolved in its entirety by the Court
rather than in arbitration;
d. Referral to arbitration does not appear to be the
most prudent action; or
e. Dismissal of the civil action would prejudice the rights
of the parties to the civil action who are not bound by
the arbitration agreement.
The court may, however, issue an order directing the
inclusion in arbitration of those parties who are bound
by the arbitration agreement directly or by reference
thereto pursuant to Section 34 of Republic Act No.
9285.
Furthermore, the court shall issue an order directing the
case to proceed with respect to the parties not bound
by the arbitration agreement.
Rule 17.8. Referral - If the parties manifest that they
have agreed to submit all or part of their dispute
pending with the court to arbitration by CIAC, the court
shall refer them to CIAC for arbitration.
PART V
PROVISIONS SPECIFIC TO OTHER FORMS OF ADR
RULE 18: GENERAL PROVISIONS
Rule 18.1. Applicability of rules to other forms of ADR. -
This rule governs the procedure for matters brought
before the court involving the following forms of ADR:
a. Early neutral evaluation;
b. Neutral evaluation;
c. Mini-trial;
d. Mediation-arbitration;
e. A combination thereof; or
f. Any other ADR form.
Rule 18.2. Applicability of the rules on mediation. - If the
other ADR form/process is more akin to mediation (i.e.,
the neutral third party merely assists the parties in
reaching a voluntary agreement), the herein rules on
mediation shall apply.
Rule 18.3. Applicability of rules on arbitration.-If the
other ADR form/process is more akin to arbitration (i.e.,
the neutral third party has the power to make a binding
resolution of the dispute), the herein rules on
arbitration shall apply.
Rule 18.4. Referral. - If a dispute is already before a
court, either party may before and during pre-trial, file a
motion for the court to refer the parties to other ADR
forms/processes. At any time during court proceedings,
even after pre-trial, the parties may jointly move for
suspension of the action pursuant to Article 2030 of the
Civil Code of the Philippines where the possibility of
compromise is shown.
Rule 18.5. Submission of settlement agreement. - Either
party may submit to the court, before which the case is
pending, any settlement agreement following a neutral
or an early neutral evaluation, mini-trial or mediation-
arbitration.
PART VI
MOTION FOR RECONSIDERATION, APPEAL AND
CERTIORARI
RULE 19: MOTION FOR RECONSIDERATION, APPEAL
AND CERTIORARI
A. MOTION FOR RECONSIDERATION
Rule 19.1. Motion for reconsideration, when allowed. -
A party may ask the Regional Trial to reconsider its
ruling on the following:
a. That the arbitration agreement is inexistent, invalid
or unenforceable pursuant to Rule 3.10 (B);
b. Upholding or reversing the arbitral tribunal’s
jurisdiction pursuant to Rule 3.19;
c. Denying a request to refer the parties to arbitration;
d. Granting or denying a party an interim measure of
protection;
e. Denying a petition for the appointment of an
arbitrator;
f. Refusing to grant assistance in taking evidence;
g. Enjoining or refusing to enjoin a person from
divulging confidential information;
h. Confirming, vacating or correcting a domestic arbitral
award;
i. Suspending the proceedings to set aside an
international commercial arbitral award and referring
the case back to the arbitral tribunal;
j. Setting aside an international commercial arbitral
award;
k. Dismissing the petition to set aside an international
commercial arbitral award, even if the court does not
recognize and/or enforce the same;
l. Recognizing and/or enforcing, or dismissing a petition
to recognize and/or enforce an international
commercial arbitral award;
m. Declining a request for assistance in taking evidence;
n. Adjourning or deferring a ruling on a petition to set
aside, recognize and/or enforce an international
commercial arbitral award;
o. Recognizing and/or enforcing a foreign arbitral
award, or refusing recognition and/or enforcement of
the same; and
p. Granting or dismissing a petition to enforce a
deposited mediated settlement agreement.
No motion for reconsideration shall be allowed from the
following rulings of the Regional Trial Court:
a. A prima facie determination upholding the existence,
validity or enforceability of an arbitration agreement
pursuant to Rule 3.1 (A);
b. An order referring the dispute to arbitration;
c. An order appointing an arbitrator;
d. Any ruling on the challenge to the appointment of an
arbitrator;
e. Any order resolving the issue of the termination of
the mandate of an arbitrator; and
f. An order granting assistance in taking evidence.
Rule 19.2. When to move for reconsideration. - A
motion for reconsideration may be filed with the
Regional Trial Court within a non-extendible period of
fifteen (15) days from receipt of the questioned ruling
or order.
Rule 19.3. Contents and notice. - The motion shall be
made in writing stating the ground or grounds therefor
and shall be filed with the court and served upon the
other party or parties.
Rule 19.4. Opposition or comment. - Upon receipt of the
motion for reconsideration, the other party or parties
shall have a non-extendible period of fifteen (15) days
to file his opposition or comment.
Rule 19.5. Resolution of motion. - A motion for
reconsideration shall be resolved within thirty (30) days
from receipt of the opposition or comment or upon the
expiration of the period to file such opposition or
comment.
Rule 19.6. No second motion for reconsideration. - No
party shall be allowed a second motion for
reconsideration.
B. GENERAL PROVISIONS ON APPEAL AND CERTIORARI
Rule 19.7. No appeal or certiorari on the merits of an
arbitral award. - An agreement to refer a dispute to
arbitration shall mean that the arbitral award shall be
final and binding. Consequently, a party to an
arbitration is precluded from filing an appeal or a
petition for certiorari questioning the merits of an
arbitral award.
Rule 19.8. Subject matter and governing rules. - The
remedy of an appeal through a petition for review or
the remedy of a special civil action of certiorari from a
decision of the Regional Trial Court made under the
Special ADR Rules shall be allowed in the instances, and
instituted only in the manner, provided under this Rule.
Rule 19.9. Prohibited alternative remedies. - Where the
remedies of appeal and certiorari are specifically made
available to a party under the Special ADR Rules,
recourse to one remedy shall preclude recourse to the
other.
Rule 19.10. Rule on judicial review on arbitration in the
Philippines. - As a general rule, the court can only vacate
or set aside the decision of an arbitral tribunal upon a
clear showing that the award suffers from any of the
infirmities or grounds for vacating an arbitral award
under Section 24 of Republic Act No. 876 or under Rule
34 of the Model Law in a domestic arbitration, or for
setting aside an award in an international arbitration
under Article 34 of the Model Law, or for such other
grounds provided under these Special Rules.
If the Regional Trial Court is asked to set aside an
arbitral award in a domestic or international arbitration
on any ground other than those provided in the Special
ADR Rules, the court shall entertain such ground for the
setting aside or non-recognition of the arbitral award
only if the same amounts to a violation of public policy.
The court shall not set aside or vacate the award of the
arbitral tribunal merely on the ground that the arbitral
tribunal committed errors of fact, or of law, or of fact
and law, as the court cannot substitute its judgment for
that of the arbitral tribunal.
Rule 19.11. Rule on judicial review of foreign arbitral
award. - The court can deny recognition and
enforcement of a foreign arbitral award only upon the
grounds provided in Article V of the New York
Convention, but shall have no power to vacate or set
aside a foreign arbitral award.
C. APPEALS TO THE COURT OF APPEALS
Rule 19.12. Appeal to the Court of Appeals. - An appeal
to the Court of Appeals through a petition for review
under this Special Rule shall only be allowed from the
following final orders of the Regional Trial Court:
a. Granting or denying an interim measure of
protection;
b. Denying a petition for appointment of an arbitrator;
c. Denying a petition for assistance in taking evidence;
d. Enjoining or refusing to enjoin a person from
divulging confidential information;
e. Confirming, vacating or correcting/modifying a
domestic arbitral award;
f. Setting aside an international commercial arbitration
award;
g. Dismissing the petition to set aside an international
commercial arbitration award even if the court does not
decide to recognize or enforce such award;
h. Recognizing and/or enforcing an international
commercial arbitration award;
i. Dismissing a petition to enforce an international
commercial arbitration award;
j. Recognizing and/or enforcing a foreign arbitral award;
k. Refusing recognition and/or enforcement of a foreign
arbitral award;
l. Granting or dismissing a petition to enforce a
deposited mediated settlement agreement; and
m. Reversing the ruling of the arbitral tribunal
upholding its jurisdiction.
Rule 19.13. Where to appeal. - An appeal under this
Rule shall be taken to the Court of Appeals within the
period and in the manner herein provided.
Rule 19.14. When to appeal. - The petition for review
shall be filed within fifteen (15) days from notice of the
decision of the Regional Trial Court or the denial of the
petitioner’s motion for reconsideration.
Rule 19.15. How appeal taken. - Appeal shall be taken
by filing a verified petition for review in seven (7) legible
copies with the Court of Appeals, with proof of service
of a copy thereof on the adverse party and on the
Regional Trial Court. The original copy of the petition
intended for the Court of Appeals shall be marked
original by the petitioner.
Upon the filing of the petition and unless otherwise
prescribed by the Court of Appeals, the petitioner shall
pay to the clerk of court of the Court of Appeals
docketing fees and other lawful fees of P3,500.00 and
deposit the sum of P500.00 for costs.
Exemption from payment of docket and other lawful
fees and the deposit for costs may be granted by the
Court of Appeals upon a verified motion setting forth
valid grounds therefor. If the Court of Appeals denies
the motion, the petitioner shall pay the docketing and
other lawful fees and deposit for costs within fifteen
days from the notice of the denial.
Rule 19.16. Contents of the Petition. - The petition for
review shall (a) state the full names of the parties to the
case, without impleading the court or agencies either as
petitioners or respondent, (b) contain a concise
statement of the facts and issues involved and the
grounds relied upon for the review, (c) be accompanied
by a clearly legible duplicate original or a certified true
copy of the decision or resolution of the Regional Trial
Court appealed from, together with certified true copies
of such material portions of the record referred to
therein and other supporting papers, and (d) contain a
sworn certification against forum shopping as provided
in the Rules of Court. The petition shall state the specific
material dates showing that it was filed within the
period fixed herein.
Rule 19.17. Effect of failure to comply with
requirements. - The court shall dismiss the petition if it
fails to comply with the foregoing requirements
regarding the payment of the docket and other lawful
fees, the deposit for costs, proof of service of the
petition, the contents and the documents, which should
accompany the petition.
Rule 19.18. Action on the petition. - The Court of
Appeals may require the respondent to file a comment
on the petition, not a motion to dismiss, within ten (10)
days from notice, or dismiss the petition if it finds, upon
consideration of the grounds alleged and the legal briefs
submitted by the parties, that the petition does not
appear to be prima facie meritorious.
Rule 19.19. Contents of Comment. - The comment shall
be filed within ten (10) days from notice in seven (7)
legible copies and accompanied by clearly legible
certified true copies of such material portions of the
record referred to therein together with other
supporting papers. The comment shall (a) point out
insufficiencies or inaccuracies in petitioner’s statement
of facts and issues, and (b) state the reasons why the
petition should be denied or dismissed. A copy thereof
shall be served on the petitioner, and proof of such
service shall be filed with the Court of Appeals.
Rule 19.20. Due course. - If upon the filing of a comment
or such other pleading or documents as may be
required or allowed by the Court of Appeals or upon the
expiration of the period for the filing thereof, and on
the basis of the petition or the records, the Court of
Appeals finds prima facie that the Regional Trial Court
has committed an error that would warrant reversal or
modification of the judgment, final order, or resolution
sought to be reviewed, it may give due course to the
petition; otherwise, it shall dismiss the same.
Rule 19.21. Transmittal of records. - Within fifteen (15)
days from notice that the petition has been given due
course, the Court of Appeals may require the court or
agency concerned to transmit the original or a legible
certified true copy of the entire record of the
proceeding under review. The record to be transmitted
may be abridged by agreement of all parties to the
proceeding. The Court of Appeals may require or permit
subsequent correction of or addition to the record.
Rule 19.22. Effect of appeal. - The appeal shall not stay
the award, judgment, final order or resolution sought to
be reviewed unless the Court of Appeals directs
otherwise upon such terms as it may deem just.
Rule 19.23. Submission for decision. - If the petition is
given due course, the Court of Appeals may set the case
for oral argument or require the parties to submit
memoranda within a period of fifteen (15) days from
notice. The case shall be deemed submitted for decision
upon the filing of the last pleading or memorandum
required by the Court of Appeals.
The Court of Appeals shall render judgment within sixty
(60) days from the time the case is submitted for
decision.
Rule 19.24. Subject of appeal restricted in certain
instance. - If the decision of the Regional Trial Court
refusing to recognize and/or enforce, vacating and/or
setting aside an arbitral award is premised on a finding
of fact, the Court of Appeals may inquire only into such
fact to determine the existence or non-existence of the
specific ground under the arbitration laws of the
Philippines relied upon by the Regional Trial Court to
refuse to recognize and/or enforce, vacate and/or set
aside an award. Any such inquiry into a question of fact
shall not be resorted to for the purpose of substituting
the court’s judgment for that of the arbitral tribunal as
regards the latter’s ruling on the merits of the
controversy.
Rule 19.25. Party appealing decision of court confirming
arbitral award required to post bond. - The Court of
Appeals shall within fifteen (15) days from receipt of the
petition require the party appealing from the decision
or a final order of the Regional Trial Court, either
confirming or enforcing an arbitral award, or denying a
petition to set aside or vacate the arbitral award to post
a bond executed in favor of the prevailing party equal to
the amount of the award.
Failure of the petitioner to post such bond shall be a
ground for the Court of Appeals to dismiss the petition.
D. SPECIAL CIVIL ACTION FOR CERTIORARI
Rule 19.26. Certiorari to the Court of Appeals. - When
the Regional Trial Court, in making a ruling under the
Special ADR Rules, has acted without or in excess of its
jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is
no appeal or any plain, speedy, and adequate remedy in
the ordinary course of law, a party may file a special civil
action for certiorari to annul or set aside a ruling of the
Regional Trial Court.
A special civil action for certiorari may be filed against
the following orders of the court.
a. Holding that the arbitration agreement is inexistent,
invalid or unenforceable;
b. Reversing the arbitral tribunal’s preliminary
determination upholding its jurisdiction;
c. Denying the request to refer the dispute to
arbitration;
d. Granting or refusing an interim relief;
e. Denying a petition for the appointment of an
arbitrator;
f. Confirming, vacating or correcting a domestic arbitral
award;
g. Suspending the proceedings to set aside an
international commercial arbitral award and referring
the case back to the arbitral tribunal;
h. Allowing a party to enforce an international
commercial arbitral award pending appeal;
i. Adjourning or deferring a ruling on whether to set
aside, recognize and or enforce an international
commercial arbitral award;
j. Allowing a party to enforce a foreign arbitral award
pending appeal; and
k. Denying a petition for assistance in taking evidence.
Rule 19.27. Form. - The petition shall be accompanied
by a certified true copy of the questioned judgment,
order or resolution of the Regional Trial Court, copies of
all pleadings and documents relevant and pertinent
thereto, and a sworn certification of non-forum
shopping as provided in the Rules of Court.
Upon the filing of the petition and unless otherwise
prescribed by the Court of Appeals, the petitioner shall
pay to the clerk of court of the Court of Appeals
docketing fees and other lawful fees of P3,500.00 and
deposit the sum of P500.00 for costs. Exemption from
payment of docket and other lawful fees and the
deposit for costs may be granted by the Court of
Appeals upon a verified motion setting forth valid
grounds therefor. If the Court of Appeals denies the
motion, the petitioner shall pay the docketing and other
lawful fees and deposit for costs within fifteen days
from the notice of the denial.
Rule 19.28. When to file petition. - The petition must be
filed with the Court of Appeals within fifteen (15) days
from notice of the judgment, order or resolution sought
to be annulled or set aside. No extension of time to file
the petition shall be allowed.
Rule 19.29. Arbitral tribunal a nominal party in the
petition. - The arbitral tribunal shall only be a nominal
party in the petition for certiorari. As nominal party, the
arbitral tribunal shall not be required to submit any
pleadings or written submissions to the court. The
arbitral tribunal or an arbitrator may, however, submit
such pleadings or written submissions if the same serves
the interest of justice.
In petitions relating to the recognition and enforcement
of a foreign arbitral award, the arbitral tribunal shall not
be included even as a nominal party. However, the
tribunal may be notified of the proceedings and
furnished with court processes.
Rule 19.30. Court to dismiss petition. - The court shall
dismiss the petition if it fails to comply with Rules 19.27
and 19.28 above, or upon consideration of the ground
alleged and the legal briefs submitted by the parties, the
petition does not appear to be prima facie meritorious.
Rule 19.31. Order to comment. - If the petition is
sufficient in form and substance to justify such process,
the Court of Appeals shall immediately issue an order
requiring the respondent or respondents to comment
on the petition within a non-extendible period of fifteen
(15) days from receipt of a copy thereof. Such order
shall be served on the respondents in such manner as
the court may direct, together with a copy of the
petition and any annexes thereto.
Rule 19.32. Arbitration may continue despite petition
for certiorari. - A petition for certiorari to the court from
the action of the appointing authority or the arbitral
tribunal allowed under this Rule shall not prevent the
arbitral tribunal from continuing the proceedings and
rendering its award. Should the arbitral tribunal
continue with the proceedings, the arbitral proceedings
and any award rendered therein will be subject to the
final outcome of the pending petition for certiorari.
Rule 19.33. Prohibition against injunctions. - The Court
of Appeals shall not, during the pendency of the
proceedings before it, prohibit or enjoin the
commencement of arbitration, the constitution of the
arbitral tribunal, or the continuation of arbitration.
Rule 19.34. Proceedings after comment is filed. - After
the comment is filed, or the time for the filing thereof
has expired, the court shall render judgment granting
the relief prayed for or to which the petitioner is
entitled, or denying the same, within a non-extendible
period of fifteen (15) days.
Rule 19.35. Service and enforcement of order or
judgment. - A certified copy of the judgment rendered
in accordance with the last preceding section shall be
served upon the Regional Trial Court concerned in such
manner as the Court of Appeals may direct, and
disobedience thereto shall be punished as contempt.
E. APPEAL BY CERTIORARI TO THE SUPREME COURT
Rule 19.36. Review discretionary. - A review by the
Supreme Court is not a matter of right, but of sound
judicial discretion, which will be granted only for serious
and compelling reasons resulting in grave prejudice to
the aggrieved party. The following, while neither
controlling nor fully measuring the court's discretion,
indicate the serious and compelling, and necessarily,
restrictive nature of the grounds that will warrant the
exercise of the Supreme Court’s discretionary powers,
when the Court of Appeals:
a. Failed to apply the applicable standard or test for
judicial review prescribed in these Special ADR Rules in
arriving at its decision resulting in substantial prejudice
to the aggrieved party;
b. Erred in upholding a final order or decision despite
the lack of jurisdiction of the court that rendered such
final order or decision;
c. Failed to apply any provision, principle, policy or rule
contained in these Special ADR Rules resulting in
substantial prejudice to the aggrieved party; and
d. Committed an error so egregious and harmful to a
party as to amount to an undeniable excess of
jurisdiction.
The mere fact that the petitioner disagrees with the
Court of Appeals’ determination of questions of fact, of
law or both questions of fact and law, shall not warrant
the exercise of the Supreme Court’s discretionary
power. The error imputed to the Court of Appeals must
be grounded upon any of the above prescribed grounds
for review or be closely analogous thereto.
A mere general allegation that the Court of Appeals has
committed serious and substantial error or that it has
acted with grave abuse of discretion resulting in
substantial prejudice to the petitioner without
indicating with specificity the nature of such error or
abuse of discretion and the serious prejudice suffered
by the petitioner on account thereof, shall constitute
sufficient ground for the Supreme Court to dismiss
outright the petition.
Rule 19.37. Filing of petition with Supreme Court. - A
party desiring to appeal by certiorari from a judgment
or final order or resolution of the Court of Appeals would support the petition; and (e) contain a sworn
issued pursuant to these Special ADR Rules may file with certification against forum shopping.
the Supreme Court a verified petition for review on
Rule 19.41. Dismissal or denial of petition. - The failure
certiorari. The petition shall raise only questions of law,
of the petitioner to comply with any of the foregoing
which must be distinctly set forth.
requirements regarding the payment of the docket and
Rule 19.38. Time for filing; extension. - The petition shall other lawful fees, deposit for costs, proof of service of
be filed within fifteen (15) days from notice of the the petition, and the contents of and the documents
judgment or final order or resolution appealed from, or which should accompany the petition shall be sufficient
of the denial of the petitioner's motion for new trial or ground for the dismissal thereof.
reconsideration filed in due time after notice of the
The Supreme Court may on its own initiative deny the
judgment.
petition on the ground that the appeal is without merit,
On motion duly filed and served, with full payment of or is prosecuted manifestly for delay, or that the
the docket and other lawful fees and the deposit for questions raised therein are too insubstantial to require
costs before the expiration of the reglementary period, consideration.
the Supreme Court may for justifiable reasons grant an
Rule 19.42. Due course; elevation of records. - If the
extension of thirty (30) days only within which to file
petition is given due course, the Supreme Court may
the petition.
require the elevation of the complete record of the case
Rule 19.39. Docket and other lawful fees; proof of or specified parts thereof within fifteen (15) days from
service of petition. - Unless he has theretofore done so notice.
or unless the Supreme Court orders otherwise, the
petitioner shall pay docket and other lawful fees to the
clerk of court of the Supreme Court of P3,500.00 and
deposit the amount of P500.00 for costs at the time of
the filing of the petition. Proof of service of a copy
thereof on the lower court concerned and on the
adverse party shall be submitted together with the
petition.

Rule 19.40. Contents of petition. - The petition shall be

filed in eighteen (18) copies, with the original copy
intended for the court being indicated as such by the
petitioner, and shall (a) state the full name of the
appealing party as the petitioner and the adverse party
as respondent, without impleading the lower courts or
judges thereof either as petitioners or respondents; (b)
indicate the material dates showing when notice of the
judgment or final order or resolution subject thereof
was received, when a motion for new trial or
reconsideration, if any, was filed and when notice of the
denial thereof was received; (c) set forth concisely a
statement of the matters involved, and the reasons or
arguments relied on for the allowance of the petition;
(d) be accompanied by a clearly legible duplicate
original, or a certified true copy of the judgment or final
order or resolution certified by the clerk of court of the
court a quo and the requisite number of plain copies
thereof, and such material portions of the record as